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HARVARD LAW LIBRARY 




PASTE OK INSIDE OF FRONT COVER OF VOL. 191 S. W. 



State Report Citation of Cues In the SOUTHWESTERN REPORTER, VOL. 101. 

The left-hand column shevs tba [age of this volume on which a case begin*, against which are ahown the volume and 
page of the State Report where same case Is to be found. 

Illustration: The case of Lock v. Stout, la In S. W. Rep., vol. 191, p. SO. It can be cited as from the State Report 
by giving the citation opposite "90" (Reporter page column) in this table t. e., "173 Ky. 304." 



Repr. 

Page State Report 

If 126 Ark. 827 

2 126 Ark. 646 

5 uo Am. t>28 

7 126 Ark. 60S 

8 126 Ark. 618 

10 126 Ark. 469 

It' 126 Ark. 601 

12? 126 Ark. 498 

13 126 Ark. 613 

16 126 Ark. 496 

16 126 Ark. 474 

20 126 Ark. 541 

22f 1^6 Ark. 627 

24 126 Ark. 416 

26 4W 

29t 126 Ark. 627 

31 126 Ark. 623 

32 126 Ark. 636 

34 126 Ark. 603 

38 269 Mo. 248 

41* Mo. 

49* Mo. 

55* Mo. 

57* Mo. 

«)• Mo. 

63* Mo. 

66* Mo. 

68* Mo. 

70 269 Mo. 281 

72* Mo. 

71* Mo. 

78 173 Ky. 337 

80 173 Ky. 412 

82 173 Ky. 347 

86 174 Ky. 372 

87 173 Ky. 341 

90 173 Ky. 304 

93 173 Ky. 394 

96 173 Ky. 469 

93 173 Ky. 355 

102 TiS Ky. 330 

105 173 Ky. 269 

110 173 Ky. 477 

113 173 Ky. 399 

117 173 Ky. 406 

119 173 Ky. 863 

121 173 Ky. 422 

125 136 Tenn. 578 

127 136 Tenn. 586 

128 136 Tenn. 593 

129 136 Tenn. 697 

131 136 Tenn. 602 

138'.. 80 Tex. Cr. R. 487 

138** Tex. Civ. App. 

142*.... Tex. Civ. App. 
148'*.... Tex. Civ. App. 

148** Tex. Civ. App. 

151* Tex. Civ. App. 

154* Tex. Civ. App. 

155* Tex. Civ. App. 

157* Tex. Civ. App. 

158* Tex. Civ. App. 

161* Tex. Civ. App. 

162* Tex. Civ. App. 

165* Tex. Civ. App. 

167* Tex. Civ. App. 

169* Tex. Civ. App. 

172* Tex. Civ. App. 

175* Tex. Civ. App. 

177* Tex. Civ. App. 

181* Tex. Civ. App. 

182* Tex. Civ. App. 

186* Tex. Civ. App. 

188* Tex. Civ. App. 

190* Tex. Civ. App. 

192* Tex. Civ. App. 

195*. Tex. Civ. App. 

199* Tex. Civ. App. 

?01« Tex. Civ. App. 

206* Tex. Civ. App. 

2u7* Tex. Civ. App. 

209 127 Ark. 48 

210 126 Ark. 336 

214 126 Ark. 576 

215 126 Ark. 597 

218 126 Ark. 571 

2"9t 126 Ark. 627 

220 127 Ark. 318 

222 126 Ark. 568 



Page State Report 

223 126 Ark. 684 

224 126 Ark. 558 

236 126 Ark. 662 

227 126 Ark. 579 

229 126 Ark. 564 

230 136 Ark. 691 

232 126 Ark. 609 

233 128 Ark. 605 

234 126 Ark. 687 

236 126 Ark. 615 

237 127 Ark. 44 

238 126 Ark. 622 

240* Mo. App. 

241. ...196 Mo. App. 232 

246* Mo. App. 

250 269 Mo. 509 

266 173 Ky. 417 

258 173 Ky. 475 

269 173 Ky. 529 

263 173 Ky. 500 

268 173 Ky. 486 

268 173 Ky. 604 

269 173 Ky. 525 

271 173 Ky. 447 

273 173 Ky. 675 

275 173 Ky. 619 

277 173 Ky. 496 

279 173 Ky. 547 

286 173 Ky. 427 

289 173 Ky. 462 

292 178 Ky. 640 

294 173 Ky. 378 

300 173 Ky. 579 

306 173 Ky. 505 

310 173 Ky. 452 

816 173 Ky. 543 

317 173 Ky. 666 

320 173 Ky. 433 

327 136 Tenn. 646 

331 136 Tenn. 630 

332 1 186 Tenn. 634 

332* 136 Tenn. 638 

334 136 Tenn. 661 

341 136 Tenn. 687 

348 137 Tenn. 1 

362 137 Tenn. 17 

366. .80 Tex. Cr. R. 498 
357.. 80 Tex. Cr. R. 506 

358* Tex. Civ. App. 

361* Tex. Civ. App. 

362* Tex. Civ. App. 

366* Tex. Civ. App. 

369* Tex. Civ. App. 

374* Tex. Civ. App. 

379* Tex. Civ. App. 

386* Tex. Civ. App. 

892* Tex. Civ. App. 

397* Tex. Civ. App. 

388* Tex. Civ. App. 

399* Tex. Civ. App. 

401 126 Ark. 618 

402 127 Ark. 28 

405 127 Ark. 38 

408 127 Ark. 22 

410 126 Ark. 611 

412 269 Mo. 625 

418 269 Mo. 674 

422* Mo. 

425* M". 

429 269 Mo. 563 

433 i7S Ky. 640 

439 173 Ky. 664 

448 173 Ky. 566 

447 173 Ky. 6S9 

450 173 Ky. 595 

451 173 Ky. 745 

466 173 Ky. 768 

456 173 Ky. 734 

468 173 Ky. 636 

460 173 Ky. 598 

465 173 Ky. 622 

471 173 Ky. 739 

474 173 Ky. 685 

477 171 Kv. 753 

480 173 Ky. 616 

482, 173 Ky. bu3 

486 173 Ky. 763 

489 173 Ky. 799 



Kepr. 

Page State Report 

491 173 Ky. 796 

493 178 Ky. 792 

495 173 Ky. 693 

498... 173 Ky. 771 

500 173 Ky. 776 

503 173 Ky. 728 

606 173 Ky. 761 

507 173 Ky. 708 

516 173 Ky. 803 

616 173 Ky. 675 

520 173 Ky. 784 

524 137 Tenn. 64 

625 137 Tenn. 70 

627 137 Tenn. 66 

529 137 Tenn. 77 

530 137 Tenn. 82 

536 187 Tenn. 82 

541.. 80 Tex. Cr. R. 501 
542.. 80 Tex. Cr. R. 485 
546. .80 Tex. Cr. R. 491 
548.. 80 Tex. Cr. R. 457 

550 108 Tex. 285 

562 108 Tex. 232 

553 108 Tex. 216 

656 108 Tex. 223 

567 108 Tex. 224 

669 108 Tex. 228 

660 108 Tex. 239 

563* Tex. 

666* Tex. Civ. App. 

668* Tex. Civ. App. 

570".... Tex. Civ. App. 
670**. ...Tex. Civ. App. 
671'*.... Tex. Civ. App. 
671 M ....Tex. Civ. App. 
673*. ...Tex. Civ. App. 

574* Tex. Civ. App. 

676* Tex. Civ. App. 

679* Tex. Civ. App. 

584* Tex. Civ. App. 

585* Tex. Civ. App. 

688* Tex. Civ. App. 

691* Tex. Civ. App. 

594* Tex. Civ. App. 

596* Tex. Civ. App. 

699* Tex. Civ. App. 

600* Tex. Civ. App. 

606* Tex. Civ. App. 

611* Tex. Civ. App. 

617* Tex. Civ. App. 

621* Tex. Civ. App. 

622* Tex. Civ. App. 

623* Tex. Civ. App. 

626 174 Ky. 99 

627 173 Ky. 881 

631 173 Ky. 843 

633 173 Ky. 847 

636 173 Ky. 806 

640 173 Ky. 817 

641 174 Ky. 16 

644 174 Ky. 22 

647 173 Ky. 820 

652 174 Ky. 68 

667 174 Ky. 10 

659 174 Ky. 91 

662 174 Ky. 64 

666 174 Ky. 39 

670 174 Ky. 47 

672 173 Ky. 701 

676 174 Ky. 80 

680 174 Ky. 1 

685 269 Mo. 546 

689 269 Mo. 561 

690* Mo. 

691* Mo. 

695.... 196 Mo. App. 512 
698... 80 Tex. Cr. R. 568 
699 108 Tex. 246 

i 700* Tex. Civ. App. 

' 709* Tex. Civ. App. 

710* Tex. Civ. App. 

711* Tex. Civ. App. 

714* Tex. Civ. App. 

717* Tex. Civ. App. 

721* Tex. Civ. App. 

723* Tex. Civ. App. 

725* Tex. Civ. App. 

728* Tex. Civ. App. 



Repr. 

f age State Report 

730* Tex. Civ. App. 

736* Tex. Civ. App. 

742* Tex. Civ. App. 

746* Tex. Civ. App. 

748* Tex. Civ. App. 

758* Tex. Civ. App. 

763* Tex. Civ. App. 

766* Tex. Civ. App. 

771* Tex. Civ. App. 

774* Tex. Civ. App. 

777* Tex. Civ. App. 

781* Tex. Civ. App. 

784* Tex. Civ. App. 

787* Tex. Civ. App. 

791* Tex. Civ. App. 

796* Tex. Civ. App. 

802* Tex. Civ. App. 

804* Tex. Civ. App. 

808* Tex. Civ. App. 

816* Tex. Civ. App. 

817* Tex. Civ. App. 

827* Tex. Civ. App. 

830* Tex. Civ. App. 

833* Tex. Civ. App. 

836* Tex. Civ. App. 

843* Tex. Civ. App. 

853* Tex. Civ. App. 

866* Tex. Civ. App. 

858* Tex. Civ. App. 

860* Tex. Civ. App. 

863* Tex. Civ. App. 

865" 174 Ky. 186 

866' 174 Ky. 62 

868 174 Ky. 123 

870 174 Ky. 120 

871 174 Ky. 28, 849 

876 174 Ky. 164 

879 174 Ky. 270 

880 174 Ky. 138 

881 174 Ky. 132 

884 174 Ky. 180 

886 174 Ky. 105 

892 174 Ky. 171 

894 174 Ky. 176 

896 174 Ky. 127 

899 127 Ark. 204 

901 127 Ark. 149 

902 127 Ark. 288 

903 127 Ark. 141 

905 127 Ark. 163 

908 127 Ark. 165 

910 127 Ark. 293 

911 127 Ark. 63 

913 127 Ark. 218 

914' 127 Ark. 108 

914' 127 Ark. 106 

916 127 Ark. 119 

916 127 Ark. 61 

917 127 Ark. 266 

918 127 Ark. 341' 

919 127 Ark. 147 

920T 127 Ark. 617 

922 127 Ark. 227 

924 127 Ark. 124 

927 127 Ark. 433 

929 127 Ark. 243 

930 127 Ark. 211 

932t 127 Ark. 617 

935 127 Ark. 110 

938 127 Ark. 64 

940 1 127 Ark. 58 

940* 127 Ark. 82 

944 127 Ark. 170 

949 127 Ark. 222 

951 127 Ark. 344 

968 127 Ark. 162 

964 127 Ark. 186 

960 127 Ark. 234 

981 127 Ark. 133 

963 127 Ark. 68 

968 137 Tenn. 99 

969 137 Tenn. 103 

974 .137 Tenn. 126 

976' 137 Tenn. 129 

»7i' 137 Tenn. 281 

951 269 Mo. 602 

983* Mo. 

987 270 Mo. 49 



Repr. 

Page State Report 

989* Mo. 

992* Mo. 

994* Mo. 

998* Mo. 

1002 269 Mo. 612 

1009* Mo. 

1011* Mo. 

1012 270 Mo. 16 

10x9* Mo. App. 

1021* Mo. App. 

1024 1 * Mo. App. 

1024" Mo. App. 

1026* Mo. App. 

1030* Mo. App. 

1032* Mo. App. 

1033... 196 Mo. App. 386 
1034... 195 Mo. App. 379 

1087* Mo. App. 

1038* .uo. App. 

1043* Mo. App. 

1047* Mo. App. 

1048* Mo. App. 

1049* Mo. App. 

1051* Mo. App. 

1063" Mo. App. 

1053'* Mo. App. 

1054* Mo. App. 

1056... 197 Mo. App. 47 

1061* Mo. App. 

1062* Mo. App. 

1064... 195 Mo. App. 366 

1066* Mo. App. 

1067* Mo. App. 

1068* Mo. App. 

1070* Mo. App. 

1072... 196 Mo. App. 291 

1076* Mo. App. 

1077* Mo. App. 

1078* Mo. App. 

1019. ..195 Mo. App. 354 

1080* Mo. App. 

1083* Mo. App. 

1084* Mo. App. 

1087... 196 Mo. App. 362 
1088... 195 Mo. App. 417 
1090... 196 Mo. App. 376 

1092" Mo. App. 

1092'... 195 Mo. App. 357 

1094* Mo. App. 

1096... 196 Mo. App. 694 

1100* Mo. App. 

1101* Mo. App. 

1104... 197 Mo. App. 62 

1106* Mo. App. 

1108* Mo. App. 

1109... 197 Mo. App. 70 

1117* Mo. App. 

1119* Mo. App. 

1121* Mo. App. 

1122... 195 Mo. App. 310 

1124* Mo. App. 

1126* Mo. App. 

1127* Mo. App 

1128... 195 Mo. App. 306 
1130... 196 Mo. App. 6C0 

1133' 108 Tex. 260 

1133' 108 Tex. 246 

1136* Tex. 

1138 108 Tex. 14 

1160. .80 Tex. Cr. R. 531 
1166.. 80 Tex. Cr. R. 643 
1158. .80 Tex. Cr. R. 603 
1160.. 80 Tex. Cr. R. 516 
1163.. 80 Tex. Cr. R. 512 
1164.. 80 Tex. Cr. R. 514 
1166.. 80 Tex. Cr. R. 547 
1166*.... Tex. Civ. App. 
1167*.... Tex. Civ. App. 
1169*.... Tex. Civ. App. 
1175*.... Tex. Civ. App. 
1176*.... Tex. Civ. App. 
1178*.... Tex. Civ. App. 
1179*.. ..Tex. Civ. App. 
1181*.... Tex. Civ. App. 
1182".. ..Tex. Civ. App. 
1182»*....Tex. Civ. App. 

1183" Tex. Cr. R 

1183'. 80 Tex. Cr. R. 511 



*Not reported in State Reports. 



t Not reported In full In Official Reports ; reported In full In the Southwestern Reporter. 
IBnd of Table.] 



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This is a Key-Numbered Volume 

Each syllabus paragraph in this volume is marked 
with the topic and Key-Number section «=» under 
which the point will eventually appear in the Amer- 
ican Digest System. 

The lawyer is thus led from that syllabus to the exact 
place in the Digests where we, as digest makers, have 
placed the other cases on the same point™ This is the 
Key-Number Annotation. 



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NATIONAL REPORTER SYSTEM — STATE SERIES 



THE 

SOUTHWESTERN REPORTER 

VOLUME 191 

PERMANENT EDITION 



COMPRISING ALL. THE CURRENT DECISIONS OF THE 

SUPREME AND APPELLATE COURTS OF ARKANSAS 
KENTUCKY, MISSOURI, TENNESSEE 
AND TEXAS 



WITH KEY-NUM3ER ANNOTATIONS 



CONTAINING A TABLE OF SOUTHWESTERN CASES IN WHICH REHEARINGS 
HAVE BEEN DENIED 



FEBRUARY 14 — MARCH 14, 1917 



ST. PAUL 




WEST PUBLISHING CO. ^ 
1917 5& 

v. i "i 1 



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COPTBIOHT, 1917 

•BY 

WEST PUBLISHING COMPANY 
(191 S.W.) 



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SOUTHWESTERN REPORTER, VOLUME 191 



JUDGES 

OF THE COURTS REPORTED DURING THE PERIOD COVERED BY THIS VOLUME 



ARKANSAS— Supreme Court. 

edgar a. Mcculloch, chut justice, 

ASSOCIATE JUSTICES. 

CARROLL D. WOOD. 
JESSE C. HART. 
FRANK G. SMITH. 
T. H. HUMPHREYS. 

KENTUCKY— Court of Appeal*. 

SHACKELFORD MILLER CHIEF JUSTICE, 1 
W. E. SETTLE, Chief Justice.' 

ASSOCIATE JUSTICES. 
JOHN D. CARROLL. 
W. E. SETTLE.' 
C. C. TURNER" 
ERNEST S. CLARKE. 
GUS THOMAS. 
ROLLIN HURT. 
SHACKELFORD MILLER. 1 
FLEM D. SAMPSON.* 

COMMISSIONER Or APPEALS. 

WILLIAM ROGERS CLAY. 

MISSOURI— Supreme Court.' 

WALLER W. GRAVES, Chief Justice. 

Division No. 1. 
HENRY W. BOND, Presiding Judge, 
associate judoes. 
W. W. GRAVES. 
JAMES T. BLAIR 
ARCHELAUS M. WOODSON. 

Division No. I. 
ROBERT F. WALKER, Presiding Judoe. 
ASSOCIATE JUDGES. 
CHAS. B. FARIS. 
FRED L. WILLIAMS. 

SUPREME COURT COMMISSIONERS. 

ROBERT T. RAILEY. 
STEPHEN S. BROWN. 
REUBEN F. ROY. 
JOHN TURNER WHITE. 

The Si. Louis Court of Appeals. 

GEORGE D. REYNOLDS, Presiding Judoe. 

ASSOCIATE JUDOES. 

WILLIAM H. ALLEN. 
WM DEE BECKER. 

The Kansas City Court of Appeals.' 

JAMES ELLISON, Presiding Judge. 

ASSOCIATE JUDGES. 

FRANCIS H. TRIMBLE. 
EWING C. BLAND. 

The Springfield Court of Appeals. 9 

ARGUS COX, Presiding Judge, 

ASSOCIATE JUDGES. 

JOHN S. FARRtNGTON. 
JOHN T. STURGIS. 



» Became Judge January 1, 1917. 

■ Became Chief Justice January 1, 1917. 

» Term expired January 1. 1917. 

* Elected November 7, 1916. 

* Beginning January, 1917. 

* Term expired December 31, 1916. 



TENNESSEE— 8u preme Court 

M. M NEIL, CHIEF JUSTICE. 
ASSOCIATE JUSTICES. 

A. S. BUCHANAN. SAMUEL C. WILLIAMS. 
D. L LANSDEN. GRAFTON GREEN. 

TEXAS— Supreme Court. 
NELSON PHILLIPS, Chief Justice. 
ASSOCIATE JUSTICES. 
WILLIAM E. HAWKINS. J. E. YANTIS. 

Court of Criminal Appeals. 

A. C. PRENDERGAST, Presiding Judge.' 
W. L. DAVIDSON, Presiding Judge.' 
JUDGES. 

W. L. DAVIDSON.' A J. HARPER.' 
W. C. MORROW.' 

Courts of Civil Appeals. 

Firtt District. 
R. A. PLEASANTS, CHIEF JUSTICE. 
ASSOCIATE JUSTICES. 
S. A. McMEANS.' C. E. LANE. 

GEO. W. GRAVES. 1 * 

Second District. 
T. H. CONNER, Chief Justice. 

ASSOCIATE JUSTICES. 
IRBY DUNKLIN. R H. BUCK 

Third District. 
W. M. KEY, Chief Justice. 

ASSOCIATE JUSTICES. 
B. H. RICE. C. H. JENKINS. 

Fourth District. 
W. S. FLY, Chief Justice. 

ASSOCIATE JUSTICES. 
A. N. MOURSUND. P. H. SWEARINGEN. 
Fifth District. 
ANSON RAINEY, CHIEF JUSTICE. 
ASSOCIATE JUSTICES. 
J. M. TALBOT. CHAS. A. RASBURY. 

Sixth District. 
SAMUEL P. WILLSON, Chief Justice. 

ASSOCIATE JUSTICES. 
RICHARD B. LEVY. WM. HODGES. 
Seventh District, 
a. P. HUFF, Chief Justice. 

ASSOCIATE JUSTICES. 

H. G. HENDRICKS.' R. W. HALL, 
WILLIAM BOYCE." 
Eighth District. 
J. R. HARPER, Chief Justice. 

ASSOCIATE JUBTICES. 
E. F. HIGGINS. A. M. WALTHALL. 
Ninth District. 
J. M. CONLEY, Chief Justice.' 
L B. HIGHTOWER, Jr., Chief Justice.' 

ASSOCIATE JUSTICES. 
A. G. BROOKE. V. E. MIDDLEBROOK.' 
A. E DAVIS.' 

1 Became Presiding Judge January 1, 1917. 

" Qualified January 1, 1917. 

* Term expired January 4, 1917. 

10 succeeded S. A. McMeans January 4, 1917. 

u Elected November, 1916, to succeed H. G. Hen- 



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AMENDMENTS TO RULES 



COURT OF APPEALS OF KENTUCKY * 



XXI. — Sessions of Court— Oral arguments 
— Filing motions in clerk's office. — Beginning 
with the winter term In January. 1917, the 
court will sit every day during the call of 
the appearance docket, on which days no 
arguments will be heard. After the appear- 
ance docket has been called, the Eastern 
division will sit In open session only every 
Tuesday of each week, and the Western di- 
vision only every Friday each week, and 
arguments will be heard only on - these days. 
Motions may be filed with notice In the 
clerk's office of the court on any day dur- 
ing the term, to have the same effect as if 
filed In court on that day. Petitions for 
rehearing and briefs may also be filed with 
notice in the clerk's office of the court on 
any day of the term, to have the same effect 
as if filed In court on that day. AU motions 
filed in the clerk's office will be disposed of 
by the court in the regular order of busi- 
ness. 

(Adopted December 25, 1918.) . 

XXII. — Maps or diagrams used at the trial 
of a case must be made a part of the record 
and brought to this court with the record. A 
failure to observe this rule will be visited 



with such penalty In each case as the court 
may deem proper. 
(Adopted December 25, 1916.) 

XXIII. — Prohibition and mandamus — 
Writs of— Practice. — If the parties to a pro- 
ceeding instituted in this court for the pur- 
pose of obtaining a writ of prohibition or 
mandamus, desire to take evidence to be 
beard on the trial in support of or against 
the application, the evidence will be by depo- 
sitions taken upon notice as provided by the 
Civil Code of Practice, or by affidavits If 
the parties so agree; but no oral evidence 
will be heard by the court. The attorneys 
for and against the application must furnish 
briefs with points and citations of authori- 
ties relied on. 

(Adopted February 13, 1917.) ' 

XXIV. — Injunctions — Motions concerning 
— Practice. — Oral arguments will not be al- 
lowed on motions to reinstate, dissolve or 
modify an Injunction. The attorneys for and 
against the motion must furnish briefs with 
points and citations of authorities relied on, 
and all such motions when made in term 
time will be considered and disposed of by 
four judges. 

(Adopted February 13, 1917.) 



1 For other rules, see 164 B. W. Til. 169 S. W. Til, 187 S. W. Tli. 
191 aW. (vii)« 



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CASES REPORTED 



Page 

Abetter v. Aiken (Tex. Civ. App.) 766 

Adams v. Adams (Tex. Civ. App.) 717 

Adams v. Crittenden (Tex. Civ. App.) 833 

Adams v. Virginia-Carolina Chemical Co. 

(Ark.) 7 214 

Adams, Witcher v. (Tex. Civ. App.) 399 

Adams Uxp. Co., State ex rel. Gibson v. 

(Mo. App.)... 1053 

iEtna Life Ins. Co., McBride v. (Ark.)... 5 
Aiken, Abahier v. (Tex. Civ. App.)....... 766 

Ainsworth v. Dorsey (Tex. Civ. App.) .... 594 

Albritton, Paducah & I. R. Co. v. (Ky.).. 879 

Alcorn v. Singleton (Ark.) 932 

Alexander, Elam v. (Ky.) 666 

AUemania Fire Ins. Co. v. Zweng (Ark.) . . 903 

AUen v. Moore (Ky.) 93 

Alley, Texas Kalamazoo Silo Co. v. (Tex. 

Civ. App.) 774 

Allison, Chicago, R. L & P. R. Co. v. (Ark.) 15 

Altenberg, Shwayder v. (Mo. App.) 1121 

American Agr. Chemical Co. v. McKinney 

(Ky.) 647 

American Indemnity Co. v. Burrows Bard- 
ware Co. (Tex. Civ. App.) 574 

American Nat. Life Ins. Co. v. White (Ark.) 25 
American Surety Co. v. Huey & Philp 

Hardware Co. (Tex. Civ. App.) 617 

American Zinc Co. of Tennessee, Lively v. 

(Tenn.) 975 

Anderson v. First Nat Bank (Tex. Civ. 

App.) 836 

Annex Realty Co., ODay v. (Ma) 41 

Aransas County v. Coleman-Fulton Pasture 

Co. (Tex.) 553 

Aransas County v. Coleman-Fulton Pasture 

Co. (Tex.) 556 

Arkadelphia Milling Co. v. Board of Equali- 
zation of Clark County (Ark.) 410 



Arkansas Nat Bank v. Gunther (Ark.) 



Arnold v. Pike (Tex. 



901 



Aran, Lewis iv.JArk.^. . 914 



App.). 



207 



Arnold v. Wood (Ark;). 960 

361 
563 
460 



Arlington v. Jones (Tex. Civ. App.) . . 

Ashe. Lauraine v. (Tex.) 

Avey, Southern R. Co. v. (Ky.) 



Baker v. Miller (Tenn.) 

Baltimore & O. R. Co. v. Leach i(Ky.). 



. 527 
.310 

Bank of Whitehouse v. White (Tenn J 332 

Barnes, Parks v. (Ky.) 447 

Barnett Bros. v. Western Assur. Co. (Ark.) 226 
Barron-Fisher-Caudill Land Co. v. Rhoda 

(Ark.) 229 

Bass, Round Mountain Lumber & Coal 

Co. v. (Tenn.) 341 

Bazzell v. Bennett (Ky.) 876 

Beach v. McKay (Tex.) 557 

Beckley, Jones v. (Ky.)... 627 

Beene v. Green (Ark.) 915 

Behre v. Hemp & Co. (Mo. App.) 1038 

Belcher v. Ramey (KyJ 520 

Bennett, Bazzell v. (Ky.) 876 

Berclid Realty Co. v. Obear (Mo. App.)... 1070 

Bergfeld, Orblitt v. (Mo.) 998 

Berlin Mach. Works v. Jefferson Wood- 
working Co. (Ky.). 82 

Berresheim, Kimmel v. (Ky.) 456 

Bertram v. Morgan (Ky.) 317 

Biggs, Goldstein v. (Ark.) 219 

Blair, Maya v. (Ark) 12 

Blaskensblp, Spauldihg Mfg. Co. v. (Tex. 

Civ. App.)..... 1167 

Blondell, Chicago, R. I. & P. R» Co. v. 
(Ark.) , 940 



Page 

Board of Education of Newport v. Newport • 

„(Ky.) V. ....871 

Board of Equalization of Clark County, 

Arkadelphia Milling Co. v. (Ark.) 410 

Board of Imp. of Pav. Imp. Dist. No. 13 

of City of Terarkana, Special School 

Dist. of Texarkana v. (Ark.) 918 

Board of Trustees Stanton Common School 

Dist., Williams v. (Ky.) 507 

Boesen, Potter County v. (Tex. Civ. App.) 787 

Bolton, Rickett v. (Ky.) 471 

Bondurant, Longnecker v. (Ky.) 286 

Bone v. Fruin-Colnon Contracting Co. (Mo. 

App.) 1062 

Bonner OH Co. v. Gaines (Tex.) 552 

Bostick v. Thomas (Tenn.) 968 

Bourne, Topping v. (Ma App.) 1032 

Bowers v. Machir (Tex. Civ. App.) 758 

Boynton Land & Lumber Co. v. Dye (Ark.) 13 
Brackin, Houston, E. & W. T. R. Co. v. 

(Tex. Civ. App.) 804 

Branham v. Hallam YTex. Civ. App.) 158 

Brannon, Lett v. (Tex. Civ. App.) 1182 

Bratchcr, Kirby Lumber Co. v. (Tex. Civ. 

App.) ,...700 

Bray, Dice v. (Ma App.) : ....1124 

Bridgham v. Sandy Valley & E. R. Co. 

(Ky.) ...: 450 

BridwiU v. Neltner (Ky.)... 633 

Brista v. State (Ark.) 7 

Brockenbrough, Higbee v. (Mo.). . : . . ; 994 

Brooks v. Ed. Steves & Sons (Tex. Civ. 

App.) 1166 

Brooks, Hailey v. (Tex. Civ. App.) 781 

Brotherhood of American Yeomen v. Hickey 

(Tex. Civ. App.)......: 162 

Brown, Jolley v.jTex. Civ. App.) 177 

Brown, Uhr v. (Tex. Civ. App.) 379 

Browning v. Gray (Tenn.) '. 525 

Brueggerman v. Brueggerman (Tex. Civ. 

App.) 570 

Bryant, McCreary County v. (Ky .).... .. 119 

Bryant, Patterson v. (Tex. Civ. App.) . . . 771 
Bryant Sabinal Nat. Bank v. (Tex. Civ. 

App.) ..:;. 1179 

Buell v. Williams (Arkj. 940 

Burgess, City of Ft. Worth v. (Tex. Civ. 

App.) 863 

Burnett v. Continental State Bank of Alto 

(Tex. Civ. App.) 172 

Burnett v. Miller (Ky.) 659 

Burney, State ex rel. Murphy v. (Mo.) 981 

Burns v. Reis (Mo. App.) 1096 

Burns v. Treadway & Webb (Ky.). ... 868 

Burrows Hardware Co., American Indem- 
nity Co. V. (Tex. Civ. App.) 574 

Burrus v. Butt (Ark.) 223 

Bush S TUlar, O'Neal v. (Tex.) 1133 

Butcher, Friesz v. (Mo.) 66 

Butt, Burrus v. (Ark.) 223 

Bybee & Wood, Vaughan Lumber Co. v. 

(Tex. Civ. App.) 827 

Bynum v. Miller (Tenn.). 128 

Caledonian Ins.' Co.; Dworkin v. (Mo. App.)1092 
Caledonian Ins. Co. of Scotland, Smith v. 

(Mo. App:). . V 1034 

Calvin v. Neel (Tex. Civ. App.) 791 

Calvird, State ex rel. Keirsey v. (Mo. App.)1079 
Camp v. National Equitable Soc. of Befton 

(Tex.) : 699 

Cansler, Graham v. (Tex. Civ. App.) 856 

Carmtchael v. Tishomingo Banking Co. 

(M 0 . App.). 1048 



191 S.W. 



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191 SOUTHWESTERN HE PORTER 



Page 

Carr v. Hahn (Ark.) 232 

Carr v. McDuffie (Tex. Civ. App.) 623 

Canon, Williams v. (Ark.) 401 

Carawefl v. Hammock (Ark.) 035 

Carter v. Elk Coal Co. (Ky.) 294 

Carter Coal Co. v. Smith, two cases (Ky.) 631 
Casey, Hartford Fire Ins. Co. v. (Mo. App.)1072 

Casner v. Meyer (Mo. App.)..... 1119 

Cornell, Steele v. (Ky.) 640 

Castleman Blakemore Co., Pickrell ft Craig 

Co. t. (Ky.) 680 

Caudffl, Smith v. (Ky.) 625 

C. E. Ferguson Sawmill Co. v. Rhynes 

(Ark.) 920 

Central Bank, Columbia, Mo. v. Lyda 

(Ma App.) 245 

Central Kentucky Traction Co. v. Winches- 
ter (Ky.) 686 

C. E. Skinner & Co., McClintock v. (Ark.) 230 
Chapman & Dewey Land Co. v. Osceola ft 

Little River Road Imp. Dist. No. 1 (Ark.) 220 

Chappell v. Frick Co. (Ky.) 268 

Charles M. Monroe Stationery Co., Nehring 

v. (Mo. App.) 1054 

Chattanooga Medicine Co. v. Ligon (Tex. 

Civ. App.) 571 

Chesson v. La Flore (Tex. Civ. App.) 745 

Chicago, B. & Q. R. Co., Jordan v. (Mo.) 70 
Chicago, B. & Q. R Co., State ex rel Gib- 
son v. (Mo. App.) 1051 

Chicago Great Western R. Co., State ex 

rel. Gibson v. (Mo. App.) 1053 

Chicago, R I. & G. R. Co. v. Nicholson 

(Tex. Civ. App.)........^ 167 

Chicago, R. I. & G. R. Co. v. Whorton (Tex. 

Civ. App.) 397 

Chicago, R. I. ft P. R. Co. v. Allison (Ark.) 15 
Chicago, R. I. & P. R. Co. v. Bhindell ^ 

(Ark.) ; 940 

Chreste v. Louisville R. Co. (Ky.) 265 

Christian, St Lotrig Southwestern R. Co. 

of Texas v. (Tex. Civ. App.) 175 

Christy v. Wabash R. Co. (Mo. App.) 241 

Cincinnati, N. O. ft T. P. R. Co. v. Hughes 

(Ky.) 495 

Citizens' Bank v. Fairweather (Ark.) 911 

Citizens' Bank of Carrsville, Sim v. (Ky.) 489 
Citizens' Nat Bank, Ohio Valley Banking 

& Trust Co. v. (Ky.) ... ...... 433 

City of Aransas Pass v. Usher (Tex. Civ. 

App.) 1W 

City of Ft Worth v. Burgess (Tex. Civ. 

App.) 863 

City of Hope, Pierce Oil Corp. v. (Ark.).. 405 
City of Houston v. Ritchie (Tex. Civ. App.) 362 
City of Laredo v. Salinas (Tex. Civ. App.) 190 
City of Morrilton, ScogginB v. (Ark.).... 914 
City of Newport, Board of Education of 

Newport v. (Ky.) 871 

City of Princeton v. Pool (Ky.) 865 

City of Springfield, Robinson v. (Mo. App.)1094 
City of Winchester, Central Kentucky 

Traction Co. v. (Ky.) 636 

Clarke v. Ellis (KyJ. 292 

Cochran v. Gibson (Tex. Civ. App.) 161 

Cody, Commonwealth v. (Ky.) 498 

Coffman v. McKee (Ark.) 402 

Coleman, Pemiscot Land ft Cooperage Co. 

v. (MoO 1009 

Coleman-Fulton Pasture Co., Aransas 

County v. (Tex.) 553 

Coleman-Fulton Pasture Co., Aransas 

County v. (Tex.) 656 

Collins, Morris v. (Ark.) 963 

Collison v. Norman (Mo.) 60 

Combs v. Commonwealth (Ky.) 87 

Comley, Louisville & N. R. Co. v. (Ky.).. 96 
Commercial Electrical Supply Co., General 

Electric Co. v. - (Mo. App.) 1106 

Commonwealth v. Cody {Ky.) 498 

Commonwealth, Combs v. (Ky.) 87 

Commonwealth, Day v. (Ky.) 105 

Commonwealth, Elkhorn Mining Corp. v. 

(Ky.) 256 



Page 

Commonwealth v. Leslie County (Ky .).... 657 

Commonwealth, Logan v. (Ky.) 676 

Commonwealth v. Rub (Ky.) 498 

Consolidated Portrait Frame Co., Tyler v. 

(Tex. Civ. App.) 710 

Continental State Bank of Alto, Burnett v. 

(Tex. Civ. App.) 172 

Cooke-Jellico Coal Co., Glover Mach. 

Works v. (Ky.) 516 

Cooper, Gulf, C. ft S. F. R. Co. v. (Tex. 

Civ. App.) 579 

Cory v. Richardson (Tex. Civ. App.) 568 

Cotulla State Bank v. Herron (Tex. Civ. 

App.) 154 

Coughlin v. Mark (Ky.) 503 

Crab Orchard Banking Co. v. Saunders 

(Ky.) 7 652 

Craig v. McFadden (Tex. Civ. App.) 203 

Crane Co. v. Hempstead (Ark.) 234 

Crawford v. Headlee (Mo.) 55 

Crittenden, Adams v. (Tex. Civ. App.) 833 

Crowley, Johnson v. (Mo.) 690 

Crutcher v. Hill (Ky.) 465 

Culberson County v. Groves Lumber Co. 

(Tex. Civ. App.) 165 

Cummins v. W. J. Sparks Co. (Ky.) 515 

Curtis v. Hopson (Ark.) 951 

Cuyuga Coal ft Coke Co., Finlayson v. 

(Ky.) 486 

Damron v. Shelby Creek Coal Co. (Ky.)... 491 

Daugherty, State v. (Tenn.) 974 

Davidson, Grand Lodge A. 0. U. W. of Ar- 
kansas v. (Ark.) 961 

Davidson, Minnequa Cooperage Co. v. 

(Ark.) 29 

Davis, Henderson v. (Tex. Civ. App.) 358 

Davis, Prescott ft N. W. R. Co. v. (Ark.). . 210 

Dawson v. Duffle (Tex. Civ. App.) 709 

Day v. Commonwealth (Ky.) 105 

Day, Kentucky Title Sav. Bank ft Trust 

Co. v. (Ky.) 886 

Delano, White v. (Mo.) 1012 

Dell, Richardson v. (Mo.) 63 

Denning, Quarles v. (Ky.) 493 

De Shazo v. Eubank (Tex. Civ. App.) 369 

Dewberry v. State (Tex. Cr. App.) 1164 

De Yampert v. Manley (Ark.) 905 

Dice v. Bray (Mo. App.) 1124 

Dill, Mobile & O. R Co. v. (Ky.) 80 

Doherty, N. O. Nelson Mfg. Co. v. (Mo.).. 983 

Dolezal v. State (Tex. Cr. App.) 1158 

Dorsey, Ainsworth v. (Tex. Civ. App.).. 594 
Douglas Park Jockey Club v. Talbott (Ky.) 474 
Drabelle, State ex rel. Hagerman v. (Mo.) 691 

Drainage Dist. No. 7 v. Terry (Ark.) 3 

Drake, Launins v. (Ark.) 209 

Drane, Ex parte (Tex. Cr. App.) 1158 

Duffle, Dawson v. (Tex. Civ. App.) 709 

Duffle, Strickland v. (Tex. Civ. App.) 622 

Dworkin v. Caledonian Ins. Co. (Mo. App.)l092 
Dye, Boynton Land ft Lumber Co. v. (Ark.) 13 
Dyer, West v. (Mo. App.) 1024 

Eades v. Simpson (Ark.) 953 

Bd. Steves & Sons, Brooks v. (Tex. Civ. 

App.) 1166 

Edwards v. State (Tex. Cr. App.) 542 

Elam v. Alexander (Ky.) 666 

Elk Coal Co., Carter v. (Ky.) 294 

Elkhorn Mining Corp. v. Commonwealth 

(Ky.) 256 

Elkins v. Moore (Ark.) 910 

Elliott, Gordon v. (Mo. App.) 1127 

Ellis, Clarke v. (Ky.) 292 

Ellison, State ex rel. Hayes v. (Mo.) 49 

Enid, O, & W. R. Co., State v. (Tex.).. 560 
E. O. Barnett Bros. v. Western Assur. Co. 

(ArkO 226 

Eoff, Scullin v. (Ark.) 31 

Equitable Surety Co., Hall v. (Ark.). 32 

Equity Elevator Co. v. Union Pac. R, Co. 

(Mo. App.) 1067 

Erwin v. Jones (Mo. App.) 1047 



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CASES REPORTED 



XI 



Page 

Ethington r. Rigg (Ky.) 98 

Eubank, De Shaso v. (Tex. Civ. App.).... 860 

Evans v. Rea (Tex.) 1133 

Ewell v. Sneed (Tenn.) 181 

ExaJl ft Co., HoUoweU v. (Ky.) 123 

Fairweatber, Citizens' Bank (Ark.).... 911 
Farmers' Bank, Kieree's Adm'r v. (Ky.).. 644 
Ferguson Sawmill Co. v. Rhynes (Ark.) . . . 920 
Fidelity-Phenix Fire Ins. Co. of New York, 

Shockey v. (Mo. App.) 1049 

Fidelity ft Casualty Co. of New York v. 

House (Tex. Civ. App.) 186 

Fields v. Horn (Tenn.) 831 

Fikes, Fred Mercer Dry Goods Co. v. (Tex. 

Civ. App.) 1178 

Finfrock, Western Union TeL Co. v. (Tex. 

Civ. App.) 181 

Finkelstein, State v. (Mo.) 1002 

Finlayson v. Cuyuga Coal & Coke Co. (Ky.) 486 

Finn v. State (Ark.) 898 

First Nat Bank, Anderson v. (Tex. Civ. 

App.) w... 836 

First Nat Bank v. Fuller (Tex. Civ. App.) 830 
First. Nat Bank, Thorn v. (Tex. Civ. App.) 148 
First State Bank of Hermleigh, Guitar v. 

(Tex. Civ. App.) 860 

First State Bank of Teague v. Hunger 

(Tex. Civ. App.) 696 

Fite, Griszard v. (Tena) 968 

Fleck v. Missouri, K. & T. R. Co. of Texas 

(Tex. Civ. App.) 386 

Flowers,. Texas ft P. R Co. t. (Tex. Civ. 

App.). 1182 

Forester, v. Werner (Ky.) 884 

Forman v. Mutual Lite Ins. Co. (Ky.) 279 

Ft Smith & V. B_ R. Co., St Louis, I. M. 

& S. R. Co. v. (Ark.) ✓ 902 

Ft Worth & D. 0. R Co. v. Frailer (Tex. 

Civ. App.) 808 

Ft Worth ft D. O. B. Co. v. Wells (Tex. 

Civ. App.) 815 

Ft Worth & R. G. R.. Co. v. Mathews 

(Tex.) 569 

Francis, Martin v. (Ky.) 259 

Frankfort Land Co. v. Hughett (Tenn.) 530 

Frailer. Ft Worth & D. C. R Co. v. (Tex. 

Civ. App.) 808 

Fred Mercer Dry Goods Co. v. Fixes (Tex. 

Civ. App.) 1178 

Frick Co., Chappell v. (Ky.) 268 

Friedberg, Inc. v. McClary (Ky.) 300 

Fries* v. Butcher (Mo.) 66 

Fruin-Colnon Contracting Co., Bone T. (Mo. 

App.f 1062 

Fruit Supply Co., McArthur v. (Ma App.)1126 
Fuller, First Nat Bank v. (Tex. Civ. App.) 830 

Gadberry, Johnson v. (Ky.) 865 

Gaines, Bonner Oil Co. v. (Tex.) 552 

Galamba v. HarrisonvUle Pump & Foundry 

Co. (Mo. App.) 1084 

Galveston City Co., Green v. (Tex. Civ. 

App.) 182 

Galveston, H. ft S. A. R Co. v. Miller (Tex. 

Civ. App.) 874 

Garnett, Priest v. (Mo. App.) 1048 

Gast Realty & Investment Co., Schneider 

Granite Co. v., four cases (Mo.) 689 

General Assembly of the Church of the Liv- 
ing God, Richardson v. (Tex. Civ. App.) 148 
General Bonding & Casualty Ins. Co. v. 

McQuerry (Tex. Civ. App.) 858 

General Electric Co. v. Commercial Electri- 
cal Supply Co.(Mo. App.) 1106 

George, Vann v. (Tex. Civ. App.) 586 

Gibson, Cochran v. (Hex. Civ. App.) 161 

Gibson v. Lower Running Water Drainage 

Diet (Ark.) 908 

Gingell, Sowders v. (Ky.) 896 

Glasgow Cooperage Co., Moulder-Holcomb 

Co. v. (Ky.) 276 

Glover Macb. Works v. Cooke-JelHco Coal 

Co. (Ky.) 516 

Goldstein v. Biggs (Ark.) 219 



Page 

Gordon v. Elliott (Mo. App.) 1127 

Gorg-Murphy Timber & Grain Co., Osage 

Tie & Timber Co. v. (Mo. App.) 1026 

Graham v. Cansler (Tex. Civ. App.) 856 

Graham, J&ggers v. (Ark.). 233 

Grand Lodge A. O. U. W. of Arkansas 

v. Davidson (Ark.) 961 

Grand Lodge, Colored Knights of Pythias, 

v. Horace (Tex. Civ. App.) 398 

Gray, Browning v. (Tenn.) 525 

Gray, New Hughes Jellieo Coal Co. v. (Ky.) 78 

Green, Beene v. (Ark.). 915 

Groen v. Galveston City Co. (Tex. Civ. 

App.) 182 

Griffin v. Griffin (Ky.) 458 

Grigg, W. T. Rawleigh Co. v. (Mo. App.). .1019 

Griswold v. Hall (Mo.) 1011 

Griszard v. Fite (Tenn.) 969 

Groves Lumber Co., Culberson County v. 

(Tex. Civ. App.) .- 166 

Gschwender, San Antonio Portland Cement 

Co. v. (Tex Civ. App.) 599 

Guitar v. First State Bank of Hermleigh 

(Tex. Civ. App.) 860 

Gulf, C. ft S. F. R. Co. v. Cooper (Tex. 

Civ. App.) 679 

Gulf, O. ft S. F. R. Co., Krueger v. (Tex. 

Civ. App.) 151 

Gulf, C. ft S. F. R. Co. v. McKie (Tex. 

Civ. App.) 576 

Gunter v. State (Tex. Cr. App.) 641 

Gnnther, Arkansas Nat Bank v. (Ark.). . . . 901 

gahn, Oarr v. (Ark.) 232 
ahn v. Wood-Stubbs Co. (Ky.) 880 

Hailey v. Brooks (Tex. Civ. App.) 781 

Hall v. Equitable Surety Co. (Ark.) 32 

Hall, Griswold v. (Mo.) 1011 

Hallam, Branham v. (Tex. Civ. App.) 158 

Hamilton v. State (Tex. Cr. App.) 1160 

Hammock, Carswell v. (Ark.) 935 

Hanking v. Hanking' Adm'r (Ky.) 258 

Hankins' Adm'r, Hanking v. (Ky.) 258 

Hanson, Reynolds v. (Mo. App.) 1030 

Hardcastle v. National Clothing Co. (Tenn.) 524 
Harelson v. St Louis ft S. F. R. Co. (Mo. 

App.) 1068 

Hargis, Taulbee v. (Ky.) 320 

Hargus, Hayes v. (Ark.) 408 

Harper v. Wilson (Mo. App.) 1024 

Harrington v. Williams (Ky.) 273 

Harris v. Hartford Fire Ins. Co. (Mo. 

App.) 1037 

Harris v. Wise (Tex. Civ. App.) 588 

Harrison, Nothwang v. (Ark.) 2 

Harrison v. State (Tex. Cr. AppO 648 

HarrisonvUle Pump & Foundry Co., Galam- 
ba v. (Mo. App.) 1084 

Hart Markle v. (Ark.) 24 

Hartford Fire Ins. Co. v. Casey (Mo. App.)1072 
Hartford Fire Ins. Co., Harris v. (Mo. 

App.) 1037 

Harvey, Leininger v. (Mo. App.) 240 

Harvey v. Rogers (Ky.) 894 

Hawkins, Southern Traction Co. v. (Tex. 

Civ. App.) 570 

Hayes v. Hargus (Ark.) 408 

Headlee, Crawford v. (Mo.) 55 

Hearn, Tinsley v. (Tenn.) 127 

Helm v. Hoke Co. (Ky.) 269 

Hemp ft Co., Behre v. (Mo. App.) 1038 

Hempstead, Crane Co. v. (Ark.) 234 

Henderson v. Davis (Tex. Civ. App.) 358 

Henderson, Wilson v. (Mo.) 72 

Henderson, Wilson v. (Mo.) 77 

Hendrix v. Morris (Ark.) 949 

Hereon, Cotulla State Bank v. (Tex. Civ. 

App.) 154 

H. Friedberg, Inc., ▼. McClary (Ky.). 300 

Hickey, Brotherhood of American Yeomen 

v. (Tex. Civ. App.) 162 

Higbee v. Brockenbrough (Mo.) 994 

Hildreth v. Morgan (Ky.) 317 

Hill, Crutcher v. (Ky.) 455 

Hill v. Patterson (Tex. Civ. App.) 621 



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191 SOUTHWESTERN REPORTER 



Pag« 

Hippie v. State. (Tex. Cr. App.) 1150 

Hirt v. Werneburg (Tex. Civ. App.) 711 

Hoke Co.,. Helm v. (Ky.) 269 

Holcomb, W. T. Rawleigh Medical Co. v. 

(Ark.) 215 

Holder, Ribelin v. <Ark.) 224 

Holding v. Kessinger (Mo. App.) 1077 

Hollowell t. Joe K. Exall ft Co. (Ky.) 123 

Hollowell, McDowell v. (Ky.) 315 

Holman, Ex parte (Mo. App.) 1109 

Home Ben. Ass'n of Angelina County v. 

Jordan (Tex. Civ. App.) 725 

Hood, Ramsey v. (Tenn.) 129 

Hoosier Mining Co. v. Union Trust . Co. 

(Ky.) 305 

Hopson, Curtis v. (Ark.) 951 

Horace, Grand Lodge. Colored Knights of 

Pythias, v. (Tex. Civ. App.) 398 

Horn, Fields v. (Tenn.) 331 

House, Fidelity ft Casualty Co. of New 

York v. (Tex. Civ. App.) 155 

Houston, E. & W..T. R. Co. v. Brackin 

(Tex. Civ. App.) .... 804 

Houston Oil Co. of Texas, Niles v. (Tex. 

Civ. App.) ... 748 

Houston Oil Co. of Texas, VUlage Mills Co. 

v. (Tex. Civ. App.) .. 723 

Hovey v. See (Tex. Civ. AppO 606 

Huey ft Philp Hardware Co., American 

Surety, Co. . v. (Tex. Civ. App.) 617 

Hughes. Cincinnati, N. O. & T. P. R. Co. 

v. (Ky.) 495 

Hughes v. Hughes (Tex. Civ. App.) 742 

Hughes, v. Willis (Tex. Civ. Appj, .... 584 

Hughett,. Frankfort Land Co. v. (Tenn.). . . . 530 
Hundley, School Dist No. 69 of Yell Coun- 

ty v. (ArkJ. 238 

Hurst, Meek v. (Mo.) 68 

Independent Breweries Co.. Schneider Gran- 
ite Co. v. (Mo.) 689 

International Life Ins. Co., Lukens v. (Mo.) 418 

Irwin v. United Rys. Co. of St Louis (Mo. 
App.) 1130 

Ivy, Rogers v. (Tex. Civ. App.) 728 

Jacks, Roach v. (Ark.) 1 

Jackson v. Wolfe (Ark.) 938 

Jaggers v. Graham (Ark.) 233 

Jancie, State v. (Mo. App.) 1100 

Jefferson Woodworking Co., Berlin Mach. 

Works v. (Ky.) 82 

J. M. Lowe Auto Co. v. Winkler (Ark.) 927 

Joe K. Exall & Co., Hollowell v. (Ky.). . . .. 123 

Johnson v. Crowley (Mo) 690 

Johnson v. Gadberry (Ky.) 865 

Johnson v. Johnson (Ky.) 672 

Johnson v. Johnson (Tex. Civ. App.) 366 

Johnson v. Plunkett-Jarrell Grocer Co. 

(Ark.) 929 

Johnson, Stackhouse v. (Ark.) 22 

Johnson v. State (Tex. Cr. App.) 1165 

Johnson v. Tackitt (Ky.) 117 

Jolley v. Brown (Tex. Civ. App.) 177 

Jones, Arrington v. (Tex. Civ. App.) <W1 

Jones v. Beekley . (Ky.) 627 

Jones, Br win v. (Mo. App.) 1047 

Jones,. Key v. (Tex. Civ. App.) 736 

Jones, Smith v. . CKy.) 500 

Joriesboro Trust Co., McDaniel v. (Ark.). . 916 
Jordan v. Chicago, B. & Q. R. Co. (Mo.). . 70 
Jordan, Home Ben. Ass'n of Angelina Coun- 
ty v. (Tex. Civ. App.) 725 

Joseph, Wegman v.. (Mo. App.) 1076 

Jost, State ex rel. Truman v. (Mo.) 38 

Kangerga & Bro. v. Willard (Tex. Civ. 

App.) 195 

Kansas City Brick ft Stone Co., Miller v. 

(Mo. App.) 1092 

Kansas City, M. ft O. R. Co. of Texas v. 

Weaver (Tex. Civ. App.) 591 

Kansas City Southern R. Co., Southard v. 

(Mo. App.) 1101 

Karren, Stolte v. (Tex. Civ. App.) 600 



Page 

Kelly. Broom. Co. Missouri Fidelity ft 

Casualty Co. (Mo. App.) 1128 

Kentucky Title Sav, Bank & Trust Co. v. 

Day (Ky.).,.,,. 886 

Kentucky Title Sav. Bank ft Trust Co. v. 

McClarty (Ky.) 892 

Kessinger, Holding v. (Mo. App.) 1077 

Key v. Jones (Tex. Civ. App.) 736 

Kierce's Adm'r v. Farmers r Bank (Ky.)... 644 

Kimmel v. Berresheim (Ky.) 456 

King, State v. (Tenn.) 352 

Kirby, Louisville & N. R. Co. v. (Ky.) 113 

Kirby .Lumber Co.. v. Bratcher (Tex. Civ. 

App.) 700 

Knox, Walker v. (Tex. Civ. App.) 730 

Kress ft Co., Scott v. (Tex. Civ. App.) 714 

Krueger Gulf, C. ft S. F. R. Co. (Tex. 

Civ, App,),.... , 151 

Kuhs, Mauch v. (Mo.) , , 425 

Lackland v. United Rys. Co. of St. Louis 

(Mo. App.) .....1104 

La Flore, Chesson ,v. (Tex. Civ. App.) 745 

La Grone, Whitfield v. (Tex. Civ. App;)... 1169 

Larmon v. Larmon (Ky.) 110 

Launius v. Drake (Ark.)...- 209 

Lauraine v. Ashe (Tex.) 563 

Laurent v. United Rys. Co. of St. Louis 

(Mo.) 992 

Leach, Baltimore & O. R. Co. v. (Ky.). . ... .310 

Lee v. Pittman (Ky.) 506 

Leininger v. Harvey (Mo. App.) 240 

Leintz, Wandling v. (Mo. App.) 1108 

Leslie County, Commonwealth v. (Ky .).... 657 
Lett v. Brannon. (Tex. CHv. App.). ...... .1182 

Lewis v. Arnn (Ark.) 914 

Lewis v. Ralston (KyJ 870 

Lewis, Rawlings v. (Tex. Civ. App.) 784 

Liebing v. Mutual Life Ins. Co. of New 

York (Mo.) 250 

Ligon, Chattanooga Medicine Co. v. (Tex. 

Civ. App.) 571 

Likens, Sim v. (Ky.) 489 

Lincoln Reserve Life- Ins; Oh v. Morgan 

(Arfc) 286 

Lively v. American Zinc Co. of Tennessee 

(Tenn.) 975 

Lock v. Stont (Ky.) 90 

Lockney State Bank v. Martin (Tex. Civ. 

App.) 796 

Logan v. Commonwealth (Ky.) 676 

London v. MeGehee (Ark.). 10 

Longnecker v. Bondurant (Ky.) 286 

Louisville R, Co., Chreste v. (Ky.) 265 

Louisville ft N. Rv Co. V; Gomley (Ky;) • ... 96 

Louisville ft N. R, Co. v. Kirby (Ky.) 113 

Louisville ft N. R. Co. v. Mitchell (Ky.). . . 465 
Louisville ft N. R. Co. v. Mudd's Adm'x 

(Ky.) 102 

Lowe Auto Co. v. Winkler (Ark.) 927 

Lower Running Water Drainage Dist., Gib- 
son v. (Ark.)........ 908 

Loy v. Stone (Ark.) 919 

Lukens v. International Life Ins. Co. (Mo.) 418 

Lusk v. Osborne (Ark.) • 944 

Lyda; Central Bank, Columbia, Mo., v. (Mo. 

App.) 245 

McArfhur Fruit Supply Co. (Mo. App.)1126 

McBride v. iEtna Life Ins. Co. (Ark.) 5 

McClarty, Kentucky Title Sav. Bank & 

Trust Co. v. (Ky.) 892 

McClary, H. Friedberg, Inc., v. (Ky.) 300 

McClintqcl? v, C. B. Skinner ft Co. (Ark.). . 230 

McCreary County v. Bryant (Ky.) 119 

McCulloph v. State (Tex. Cr. App.) 357 

McDaniel v. Jonesboro Trust Co. (Ark.) ... 916 
McDaniel Milling Co. v. Missouri Pac R. 

Co. (Mo. App;)... 1021 

McDoweU v. Hollowell (Ky.) 315 

McDuffie, Carr v. (Tex. Civ. App.) 623 

McFadden, Craig v. (Tei Civ. App.) 203 

MeGehee, London v. (Ark.) 10 

Machir, Bowers v. (Tex. Civ. App.) . ....... 753 



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Page 

McKay, Beach v. (Tex:) 657 

MeKee, Coffman v. (Ark.) 402 

MeKie, Golf, C. & S. F. R. Co. v. (Tex. Civ. 

App.) 576 

McKinncy, American Agr. Chemical Co. v. 

(Ky.) 647 

McMichael, St Louis Southwestern R. Co. 

of Texas v. (Tex. Civ. App.) 186 

McQuerry. General Bonding & Casualty Ins. 

Co. t. (Tex. Civ. App.).. 858 

Magnolia Petroleum Co., Texas Auto & 

Supply Co. v. (Tex Civ. App.) 678 

Mahan, Nafiiger v. (Mo. AppO 1080 

M. A. Kelly Broom Co. v. Missouri Fidelity 

& Casualty Co. (Mo. App.) 1128 

Manley.De Yampert v. (Ark.) 905 

Mark, Coughlin v. (Ky.) 503 

Markle v. Hart (Ark) 24 

Marshall v. RoblsonJTex.) 1136 

Martin t. Francis (Ky.) ..• 259 

Martin, Lockney State Bank v. (Tex. Civ. 

App.) 796 

Martin, Sales v. (Ky.) 480 

Martin, State ex reL Stickle v. (Mo. AppJ. .1064 
Martin, Western Union TeL Co. v. CTex. 

Civ. App.) 192 

Mathews, Ft Worth 4 R. G. R. Co. v. 

(Ter.) 659 

Mauch v. Kuhs (Mo.) 425 

Maxwell v. Sutton (Mo. App.) 1088 

Mnyhall v. Stoecker (Mo. App.) 1117 

Mays v. Blair (Ark.) 12 

Mecom v. Vinton (Tex. Civ. App.) 763 

Meek v. Hurst (Mo.) 68 

Melton v. Melton (Ark.) 20 

Mendenhall, Shepard v. (Ark.) 237 

Mercer Dry Goods Co. v. Fikes (Tex. Civ. 

App.) 1178 

Merrimon v. Parkey (Tenn.) 327 

Metcalf, United Talking Mach. Co. v. (Ky.) 881 
Metropolitan St. R Co., White v. (Mo. 

App.) 1122 

Meyer, Casner v. (Mo. App.) 1119 

M. P. Roarke Co. v. National Conservation 

Exposition Co. (Tenn.) 348 

Michigan Commercial Ins. Co. v. Rodger 

(Mo. App.). 1066 

Middleton, Terrell v. (Tex.)..: 1138 

Midland Nat Bank, Williams v. (Tex. Civ. 

App.) 1181 

Milam County, San Antonio & A. P. R Co. 

v. (Tex. Civ. App.) 571 

Miller, Baker v. (Tenn.) 527 

Miller, Burnett v. (Ky.) 650 

Miller, Bynum v. (Tenn.) 128 

Miller, Galveston, H. & S. A. R. Co. v. (Tex. 

Civ. Appj 374 

Miller v. .Kansas City Brick & Stone Co. 

(Mo. Ann.) 1092 

Miller v. State (Tex. Or. App.) 1163 

Minnequa Cooperage Co. v. Davidson (Ark.) 29 
Minnesota Mut. life Ins. Co., Payne v. (Mo. 

App.) 695 

Missouri Fidelity & Casualty Co., M. A. 

Kelly Broom Co. v. (Mo. App.) 1128 

Missouri,. K. & T. R. Co. of Texas, Fleck 

v. (Tex. Civ. App.) 386 

Missouri Pac. R Co., McDaniel Milling Co. 

v. (Mo. App.) 1021 

Mitchell, Louisville & N. R Co. v. (Ky.) . . 465 
M. Kangerga & Bro. v. Willard (Tex. Civ. 

App.) 195 

Mobile A O. R Co. v. Dill (Ky.) 80 

Monroe Stationery Co., Nehring v. (Mo. 

App.) 1054 

Moore, Allen v. (Ky.) 93 

Moore, Elkina v. (Ark.) 910 

Moore, Boss v. (Tex. Civ. App.) 853 

Morgan, Bertram v. (Ky.) 317 

Morgan, Hildreth v. (Ky.) 317 

Morgan, Lincoln Reserve Life Ins. Co. v. 

(Ark.) 236 

Morris v. Collins (Ark.) 963 

Morris, Hendrix v. (Ark.) 949 

Morrison, Panhandle & S. F. R Co. v. (Tex. 

CSv. App.) 138 



Page 

Moss, Rishworth v. (Tex. Civ. App.) 848 

Mothershead, South v. (Ky.) 277 

Moulder-Holcomb Co. v. Glasgow Cooper- 
age Co. (Ky.) 275 

Mndd's Adm'x, Louisville & N. R. Co. v. 

(Ky.) 102 

Munger, First State Bank of Teague v. 

(Tex. Civ. App.) 606 

Murphy, Ridling v. (Tex. Civ. App.) 206 

Mutual Life Ins. Co., Forman v. (Ky.) 279 

Mutual Life Ins. Co. of New York, Liebing 

(Mo.) 250 

Nafziger v. Mahan (Mo. App.) 1080 

National Clothing Co., Hardcastle v. 

(Tenn.) 524 

National Conservation Exposition Co., M. 

F. Rourke Co. v. (Tenn.) 848 

National Conservation Exposition Co., 

Thomas & Turner v. (Tenn.) 348 

National Equitable Soc. of Belton, Camp 

v. (Tex.) 699 

Neel, Calvin v. (Tex. Civ. App.) 791 

Nehring v. Charles M. Monroe Stationery 

Co. (Mo. App.) 1054 

Nelson Mfg. Co. v. Doherty (Mo.) 983 

Neltner. Bridwill v. (Ky.) 633 

Nepbler v. Rowland (Mo. App.) 1033 

New Hughes Jellico Coal Co. v. Gray (Ky.) 78 

Newman,. Scullin v.. (Ark.). 922 

New River Lumber Co. v. Tennessee R. Co. 

(Tenn.) 834 

Nicholson, Chicago, R. L & G. R Co. v. 

(Tex. Civ. App.) 167 

Nichols-Shepard Sales Co., Varley v. (Tex. 

Civ. A V p7) 611 

Nlckell, Watson v. (Ky.) 263 

Niles v. Houston Oil Co. of Texas (Tex. 

Civ. App.) 748 

Noble, Smith v. (Ky.) 641 

N. O. Nelson Mfg. Co. v. Doherty (Mo.).. 983 

Norman, Collison v. (Mo.) 60 

North Jellico Coal Co. v. Stewart (Ky.) 451 

North Texas. Transfer & Warehouse Co. v. 

State (Tex.) 650 

Nothwane v. Harrison (Ark.) 2 

Norton. Williams v. (Ark.) 34 

Nortoni, State ex rel. Thompson v. (Mo.) 429 

Norvell, State v. (Tenn.) 530 

Nunnelly v. Nunnelly (Ky.) 85 

Obear, Berclid Realty Co. v. (Mo. App.).. 1070 

O'Day v. Annex Realty Co. (Mo.) 41 

Odell, Wooten v. (Tex. Civ. App.) 721 

Ohio Valley Banking & Trust Co. v. Citi- 
zens' Nat. Bank (Ky.) 433 

O'Neal v. Bush & Tillar (Tex.) 1183 

Orblitt v. Bergfeld (Mo.) 998 

Osage Tie & Timber Co. v. Gorg-Murpby 

Timber & Grain Co. (Mo. App.) 1026 

Osborne, Lusk v. (Ark.) 944 

Osceola & Little River Road Imp. Disk No. 

1, Chapman & Dewey Land Co. v. (Ark.) 220 
Our United Brotherhood, Smith v. (Tex. 

Civ. App.) 199 

Overland Automobile Co., Walker v. (Mo. 
App.) 1061 

Paducah & I. R. Co. v. Albritton (Ky.) ... 878 

Palmer Hotel Co. v. Renfro (Ky.) 271 

Panhandle & S. F. R Co. v. Morrison (Tex. 

Civ. App.) 138 

Panhandle * S; F. R. Co. v. Vaughn (Tex. 

Civ. App.) 142 

Parkey, Merrimon v. (Tenn.) 827 

Parks y. Barnes (Ky.) 447 

Patterson v. Bryant (Tex. Civ. App.) 771 

Patterson, Hill v. (Tex. Civ. App.) 621 

Patterson v. Peaslee-Gaulbert Co. (Ky.).. 670 
Payne v. Minnesota Mut Life Ins. Co. 

(Mo. App.) 695 

Payne v. Providence Graded Common 

School Dist (Ky.) 477 

Paytes v. State (Tenn.) 975 

Pease v. Randle (Tex. Civ. App.) ........ 666 



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Page 

Peaslee-Gaulbert Co., Patterson v. (Ky.).. 670 
Pemiscot Land & Cooperage Co. v. Cole- 
man (Mo.) 1009 

Peycke Bros. Commission Co. v. Sandstone 

Co-op. Co. (Mo. App.) 1088 

Phillips v. Phillips (Ky.) 482 

Pickrell & Craig Co. v. Castleraan Blake- 
more Co. (Ky.) 680 

Pierce Oil Corp. v. Hope (Ark.) 406 

Pike, Arnold v. (Tex. Civ. App.) 207 

Piper, Western Union Tel. Co. v. (Tex. Civ. 

App.) 817 

Pittman, Lee v. (Ky.) 506 

Plapao Laboratories Incorporation, Weller 

v. (Mo. App.) 1069 

Plunkett-Jarrell Grocer Co., Johnson v. 

(Ark.) 929 

Pool, City of Princeton v. (Ky.) 865 

Potter, State ex inf. Burgee, ex rel. Mar- 
but, v. (Mo.) 57 

Potter County v. Boesen (Tex. Civ. App.). . 787 

Powell, Wadsworth v. (Tex. Civ. App.) 169 

Prescott & N. W. R. Co. v. Davis (Ark.).. 210 

Priest v. Garnett (Mo. App.) 1048 

Providence Graded Common School Disk, 

Payne v. (Ky.). 477 

Public Service Commission, State ex rel. 
Watts Engineering Co. v. (Mo.) 412 

Quarles v. Denning (Ky.) 498 

Ralston, Lewis v. (Ky.) 870 

Ramey, Belcher v. (Ky.) 520 

Ramsey v. Hood (Tenn.) 129 

Randle, Pease v. (Tex. Civ. App.) 566 

Rasberry v. State (Tex. Cr. App.) 356 

Rawleigh Co. v. Grigg (Mo. App.) 101» 

Rawleigh Medical Co. v. Holcomb (Ark.). .. 216 

Rawlings v. Lewis (Tex. Civ. App.) 784 

Ray v. Shemwell (Ky.) 662 

Rea, Evans v. (Tex.) 1138 

Redfield School Board, Reiff v. (Ark.) 16 

Reiff v. Redfield School Board (Ark.). ..... 16 

Reis, Burns v. (Mo. App.) 1096 

Rcnfro, Palmer Hotel Co. v. (Ky.) 271 

Reuff-Griffin Decorating Co. v. Wilkes 

(Ky.) 443 

Reynolds v. Hanson (Mo. App.) .1030 

Rboda, Barron-Fisher-Caudill Land Co. 

v. (Ark.) 229 

Rhynes, C. E. Ferguson Sawmill Co. v. 

(Ark.) 920 

Ribelin v. Holder (Ark.) 224 

Richardson, Cory v. (Tex. Civ. App.) 568 

Richardson v. Dell (Mo.). 63 

Richardson v. General Assembly of the 

Church of the Living God (Tex. Civ. 

App.) ...148 

Rickett v. Bolton (Ky.) 471 

Rider v. State (Ark.) 12 

Ridling v. Murphy (Tex. Civ. App.) 206 

Rigg, Ethington v. (Ky.) 98 

Rishworth v. Moss (Tex. Civ. App.) : . 843 

Ritchie, City of Houston v. (Tex. Civ. 

App.) 362 

Roach v. Jacks (Ark.) 1 

Robertson, State ex rel. Equitable Life 

Assur. Soc. of United States v. (Mo.) .... 989 

Robinson v. Springfield (Mo. App.) 1094 

Robison, Marshall v. (Tex.) 1136 

Rodger, Michigan Commercial Ins. Co. v. 

(Mo. App.) 1066 

Rogers, Harvey v. (Ky.) 894 

Rogers v. Ivy (Tex. Civ. App.) 728 

Rogers, State v. (Tenn.) 125 

Roicoei S. & P. R. Co. v. Taylor (Tex. Civ. 

App.) 1176 

goes v. Moore (Tex. Civ. App.) 853 
ound Mountain Lumber 4 Coal Co. v. 

Bass (Tenn.). 341 

Rourke Co. v. National Conservation Expo- 
sition Co. (Tenn.) 348 

Routh, Scullin v. (Ark.) 218 

Rowland, Nephler v. (Mo. App.) 1033 

Rudy v. State (Tex. Cr, App.) 698 



Page 

Rnecking Const Co. v. WitfaneD (Mo.) 686 

Ruh, Commonwealth v. (Ky.) 406 

Rule Cotton Oil Co. v. Russell (Tex. Civ. 

App.> 802 

Russell, Rule Cotton Oil Co. v. (Tex. Civ. 

App.) 802 

Sabinal Nat. Bank v. Bryant (Tex. Civ. 

App.) 1179 

St Louis, I. M. 4 S. R Co. v. Ft Smith 

& V. B. R. Co. (ArkO 902 

St Louis, I. M. 4 S. R. Co., Treadway v. 

(Ark.) 930 

St Louis Southwestern R. Co. of Texas v. 

Christian (Tex. Civ. App.) 175 

St. Louis Southwestern R Co. of Texas v. 

McMichael (Tex. Civ. App.) 186 

St Louis & S. F. R. Co., Hnrelson v. 

(Mo. App.) 1068 

Sales v. Martin (Ky.) 480 

Salinas, City of Laredo v. (Tex. Civ. App.) 190 
Salisbury v. Wellman Electrical Co. (Ky.) 289 
San Antonio Portland Cement Co. v. 

Gschwender (Tex. Civ. App.) 699 

San Antonio & A. P. R. Co. v. Milam Coun- 
ty (Tex. Civ. App.) 571 

Sandstone Co-op. Co., Peycke Bros. Com- 
mission Co. v. (Mo. App.) 1088 

Sandy Valley 4 E. R. Co., Bridgham v. 

(Ky.) .....7. 450 

Saunders, Crab Orchard Banking Co. v. 

(Ky.) 652 

Savage, Wardlaw v. (Tex. Civ. App,). .. .1176 
Schneider Granite Co. v. Gast Realty 4 In- 
vestment Co., four cases (Mo.) 689 

Schneider Granite Co. v. Independent Brew- 
eries Co. (Mo.) 689 

School Dist No. 69 of Yell County v. Hund- 
ley (Ark.) 238 

Scoggins v. Morrilton (Ark) 914 

Scott v. S. H. Kress 4 Co. (Tex. Civ. App.) 714 

Scullin v. Eoff (Ark.) 31 

Scullin v. Newman (Ark.) 922 

Scullin v. Routh (Ark.) 218 

Scullin v. Vining (Ark.) 924 

See, Hovey v. (Tex. Civ. App.) 606 

Sharp v. Sovereign Camp W. O. W. (Tenn.) 529 
Shelby Creek Coal Co., Damron v. (Ky.).. 491 

Shemwell, Ray v. (Ky.) 662 

Shepard v. MendenhaU (Ark.) 237 

S. H. Kress & Co., Scott v. (Tex. Civ. App.) 714 
Shockey v. Fidelity-Phenix Fire Ins. Co. of 

New York (Mo. App.) 1049 

Shwayder v. Altenberg (Mo. App.) 1121 

Sim v. Citizens' Bank of Oarrsville (Ky.) 439 

Sim v. Likens (Ky.) 489 

Simpson. Eades v. (Ark.) 953 

Sims v. Stovall (Ark.) 954 

Singleton, Alcorn v. (Ark.) 932 

Skinner 4 Co., McClintock v. (Ark.) 280 

Smith v. Caledonian Ins. Co. of Scotland 

(Mo. App.) 1034 

Smith, Carter Coal Co. v., two cases (Ky.) 631 

Smith v. Caudill (Ky.) 625 

Smith v. Jones (Ky.) 600 

Smith v. Noble (Ky.) 641 

Smith v. Our United Brotherhood (Tex. 

Civ. App.) 199 

Smith v. State (Ark.) 913 

Smith v. State (Tex. Cr. App.) 138 

Smith v. Tipps (Tex. Civ. App.) 892 

Sneed, Ewell v. (Tenn.) 131 

Snowuen, Springfield Fire 4 Marine Ins. 

Co. v. (Ky.) 439 

South v. Mothershead (Ky.) 277 

Southard v. Kansas City Southern R. Co. 

(Mo. App.).. ' 1101 

Southern R. Co. v. Avey (Ky.) 460 

Southern Traction Co. v. Hawkins (Tex. 

Civ. App.) 570 

Sovereign Camp W. O. W., Sharp v. 

(Tenn.) 529 

Sowderg v. Gingell (Ky.) 896 

Sparks Co., Cummins v. (Ky.) 515 



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Page 

SpaaMing Mfg. Co. v. Blankenship (Tex. 

Civ. App.) "......1167 

Special School Dist of Texarkana v. 
Board of Imp. of Paving Imp. Dist. No. 

13 of City of Texarkana (Ark.) 018 

Springfield Fire ft Marine Ins. Co. v. Snow- 
den (Ky.) 439 

Staekhouse v. Johnson (Ark.) 22 

Standard Trust Co., Tennessee R. Co. v. 

(Tenn.) 834 

Starkey, Stewart v. fTenn.) 832 

State, Brista v. (ArkO. 7 

State v. Daugherty (Tenn.) 974 

State, Dewberry v. (Tex. Cr. App.) 1164 

State, Doleaal v. (Tex. Cr. App.) 1158 

State, Edwards v. (Tex. Cr. App.) 542 

State v. Enid, O. & W. R. Co. (Tex.) 560 

State v. Finkelatein (Mo.) 1002 

State, Finn v. (Ark.) 809 

State, Gunter v. (Tex. Cr. App.) 541 

State, Hamilton v. (Tex. Cr. App.) 1160 

State, Harrison v. (Tex. Cr. App.) 548 

State, Hippie v. (Tex. Cr. App.) 1150 

State v. Jancie (Mo. App.) 1100 

State, Johnson v. (Tex. Cr. App.) 1165 

State v. King (Tenn.) 352 

State, McCulloch v. (Tex. Cr. App.) 857 

State, Miller v. (Tex. Cr. App.) 1163 

State, North Texas Transfer & Warehouse 

Co. v. (Tex.) 550 

State v. Norvell (Tenn.) 536 

State, Paytes v. (Tenn.) 975 

State, Rasberry v. (Tex. Cr. App.) 356 

State, Rider v. (Ark.) 12 

State v. Rogers (Tenn.) 125 

State, Rudy v. (Tex. Cr. App.) 698 

State, Smith v. (Ark.) 913 

State, Smith v. (Tex. Cr. App.) 138 

State, Terry v. (Tex. Cr. App.) 1183 

State v. Theodore (Mo.) 422 

State, Vann v. (Tex. Cr. App.) 1183 

State, Watson v. (Tex. Cr. App.) 546 

State ex inf. Burges, ex rel. Marbut v. Pot- 
ter (Mo.) 57 

State ex rel. Chester, P. ft S. O. R. Co. v. 

Turner (Ma) 987 

State ex rel. Douglas v. Tune (Mo. App.). .1078 
State ex rel. Equitable Life Aacar. Soc. of 

United States v. Robertson (Mo.) 989 

State ex rel. Gibson v. Adams Exp. Co. 

(Mo. App.) 1053 

State ex rel. Gibson v. Chicago, B. & Q. R. 

Co. (Mo. App.) 1051 

State ex rel. Gibson v. Chicago Great West- 
ern R. Co. (Mo. App.) 1053 

State ex rel. Hagerman v. Drabelle (Mo.) . . 691 

State ex rel. Hayes v. Ellison (Mo.) 49 

State ex reL Keirsey v. Calvird (Mo. App.)1079 

State ex rel. Murphy v. Burney (Mo.) 981 

State ex rel. Stickle v. Martin (Mo. App.)1064 
State ex rel. Thompson v. Norton! (Mo.) . . 429 

State ex rel. Truman v. Jost (Mo.) 38 

State ex rel. Watts Engineering Co. v. Pub- 
lic Service Commission (Mo.) 412 

Steele v. Cassell (Ky.) 640 

Stephens, Wiggins v. (Tex. Civ. App.) 777 

Steves ft Sons, Brooks v. (Tex. Civ. App.). .1166 
Stewart, North Jellico Coal Co. v. (Ky.). . 451 

Stewart v. Starkey (Tenn.) 332 

Stoecker, Mayhall v. (Ma App.) 1117 

Stolte v. Karren (Tex. Civ. App.) 600 

Stone, Loy v. (Ark.) 919 

Stout, Lock v. (Ky.) 90 

StovalL Sims v. (Ark.) 954 

Strickland v. Duffle (Tex. Civ. App.) 622 

Stotzman, Ward v. (Mo. App.) 1090 

Sutton, Maxwell v. (Mo. App.) 1083 

Tackitt, Johnson v. (Ky.) 117 

Talbott, Douglas Park Jockey Club v. (Ky.) 474 

Taulbee v. Hargia (Ky.) 320 

Taylor, Roscoe, S. ft P. R. Co. v. (Tex. 

Civ. App.) 1175 

Tennessee R. Co., New River Lumber Co. 

r. (Tenn.) 334 



Page 

Tennessee R Co. Standard Trust Co. 

(Tenn.) 884 

Terrell v. Middleton (Tex.) 1138 

Terry, Drainage Dist No. 7 v. (Ark.) 8 

Terry v. State (Tex. Cr. App.) 1183 

Texas Auto & Supply Co. v. Magnolia Pe- 
troleum Co. (Tex. Civ. App.) 873 

Texas Kalamazoo Silo Ca v. Alley (Tex. 

Civ. App.) 774 

Texas ft P. R. Co. v. Flowers (Tex. Civ. 

App.) 1182 

Theodore, State v. (Mo.) 422 

Thorn v. First Nat Bank (Tex. Civ. App.) 148 

Thomas, Bostick v. (Tenn.) 96S 

Thomas v. Thomas (Ark.) 227 

Thomas & Turner v. National Conservation 

Exposition Co. (Tenn.) 848 

Thomason, Turner v. (Ark.) 222 

Tinsley v. Henrn (Tenn.) 127 

Tipps, Smith v. (Tex. Civ. App.) 392 

Tishomingo Banking Co., Carmichael v. 

(Mo. App.) 1043 

Topping v. Bourne (Mo. App.) 1032 

Treadway v. St. Louis, I. M. ft S. R. Co. 

(Ark.) 930 

Treadway ft Webb, Burns v. (Ky.) 868 

Tune, State ex rel. Douglas v. (Mo. App.) 1078 
Turner, State ex reL Chester, P. & S. G. 

R. Co. v. (Mo.) 987 

Turner v. Thomason (Ark.) 222 

Tyler v. Consolidated Portrait Frame Co. 

(Tex. Civ. App.) 710 

Uhr v. Brown (Tex. Civ. App.) 879 

Union Pac. R Co., Equity Elevator Co. v. 

(Mo. App.) 1067 

Union Trust Co., Hoosier Mining Co. v. 

(Ky.) 305 

United Rys. Co. of St. Louis, Irwin v. 

(Mo. App.) 1130 

United Rys. Ca of St Louis, Lackland v. 

(Mo. App.) 1104 

United Rys. Co. of St Louis, Laurent v. 

(Mo.) 992 

United States Exp. Co., Williams v. (Mo. 
1 1087 



United Talking Mach. Co. v. Metcalf (Ky.) 881 
Usher, City of Aransas Pass v. (Tex. Civ. 
App.) 157 

Vann v. George (Tex. Civ. App.) 585 

Vann v. State (Tex. Cr. App.) 1183 

Varley v. Nichols-Shepard Sales Co. (Tex. 

Civ. App.) 611 

Vaughan Lumber Co. v. Bybee ft Wood 

(Tex. Civ. App.) 827 

Vaughn, Pnnhandle & S. P. R. Co. v. (Tex. 

Civ. App.) 142 

Village Mills Ca v. Houston Oil Co. of Tex- 
as (Tex. Civ. App.) 723 

Vining, Scullin v. (Ark.) 924 

Vinton, Mecom v. (Tex. Civ. App.) 763 

Virginia-Carolina Chemical Co., Adams v. 
(Ark.) 214 

Wabash R. Co.. Christy v. (Mo. App.)... 241 
Wadsworth v. Powell (Tex. Civ. App.).... 169 

Walker v. Knox (Tex. Civ. App.) 730 

Walker v. Overland Automobile Co. (Mo. 

App.) 1061 

Walton v. Walton (Tex. Civ. App.) 1SS 

Wandling v. Leintz (Mo. App.) 1108 

Ward v. Stutsman (Mo. App.) 1090 

Ward v. Wilson (Ark.) 917 

Wardlaw v. Savage (Tex. Civ. App.) 1176 

Watson v. NickellJKy.) 263 

Watson v. State (Tex. Cr. App.) 546 

Weaver, Kansas City, M. ft 0. R. Co. of 

Texas v. (Tex. Civ. App.) 591 

Wegman v. Joseph (Mo. App.) 1076 

Weller v. Plnpao Laboratories Incorpora- 
tion (Mo. App.) 1056 

Wellman Electrical Co., Salisbury v. (Ky.) 2fc9 
Wells, Ft. Worth & D. C. R. Co. v. (Tex. 
Civ. App.) ... 815 



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191 SOUTHWESTERN REPORTER 



Page 

Werneburg, Hirt v. (Tex. Civ. App.) 711 

Werner, Forester v. (Ky.) 884 

West v. Dyer (Mo. App.) 1024 

Western Assur. Co., E. O. Barnett Broe. 

v. (Ark.) 226 

Western Union Tel. Co. v. Finfrock (Tex. 

Civ. App.) 181 

Western Union Tel. Co. v. Martin (Tex. 

Civ. App.) 192 

Western Union Tel. Co. v. Piper (Tex. Civ. 

App.) 817 

White, American Nat. life Ins. Co. v. 

b 25 

White,' Bank' "of 'Whitehouse' v.' (Tenn.j! .' .' 332 

White v. Delano (Mo.) 1012 

White v. Metropolitan St R. Co. (Mo. 

App.) 1122 

Whitfleld v. La Grone (Tex. Civ. App.). . .1169 
Whorton, Chicago, R. I. & G. R. Co. v. 

(Tex. Civ. App.) 397 

Wiggins v. Stephens (Tex. Civ. App.). .... 777 
Wilkes, Reuff-Griffin Decorating Co. v. 

(Ky.) 443 

Willard, M. Kangerga & Bro. v. (Tex. Civ. 

APP.) 195 

Williams v. Board of Trustees Stanton 

Common School Dist (Ky.) 507 



Page 

Williams, Buell v. (Ark.) 940 

Williams v. Carson (Ark.) 401 

Williams, Harrington v. (Ky.) 273 

Williams v. Midland Nat. Bank (Tex. Civ. 

App.) 1181 

Williams v. Norton (Ark.) 34 

Williams v. United States Exp. Co. (Mo. 

App.) 1087 

Willis, Hughes v. (Tex. Civ. App.) 584 

Wilson, Harper v. (Mo. App.) 1024 

Wilson v. Henderson (Mo.) 72 

Wilson v. Henderson (Mo.) 77 

Wilson, Ward v. (Ark.) 917 

Winkler, J. M. Lowe Auto Co. v. (Ark.).. 927 

Wise, Harris v. (Tex. Civ. App.) 588 

Witcher v. Adams (Tex. Civ. App.) 399 

Withnell, Ruecking Const Co. v. (Mo.).. 685 

W. J. Sparks Co., Cummins v. (Ky.) 515 

Wolfe, Jackson v. (Ark.) 9«8 

Wood, Arnold v. (Ark.) 960 

Wood-Stubbs Co., Hahn v. (Ky.) 880 

Wooten v. Odell (Tex. Civ. App.) 721 

W. T. Rawleigh Co. v. Grigg (Mo. App.). .1019 
W. T. Rawleigh Medical Co. v. Holcomb 

(Ark.) 215 

Zweng, Allemania Fire Ins. Co. v. (Ark.) 903 



REHEARINGS DENIED 



[Cases in which rehea rings have been denied, without the rendition of a written opinion, since 
the publication of the original opinions in previous volumes of this Reporter.] 



KENTUCKY. 

City of Ashland v. City of Catlettsburg, 189 
S. W. 454. 

Heck v. Batistee, 189 S. W. 25. 

Leslie v. Consolidation Coal Co., 188 S. W. 
1083. 



Louisville & N. R. Co. v. Perry's Adm'r, 190 
S. W. 1064. 

O'Bryan v. England, 189 S. W. 1126. 

Parsons v. Dils, 189 S. W. 1158. 

Scott v. Scott, 190 S. W. 143. 



See End of Index for Tables of Southwestern Cases in State Reports 

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THE 

SOUTHWESTERN REPORTER 

VOLUME 191 



ROACH et aL v. JACKS et aL (No. 86.) 
(Supreme Court of Arkansas. Jan. 8, 1917.) 

1. Balks «J=»417— Value of Propibty— Con- 
flicting Evidence. 

In view of conflicting evidence offered re- 
garding value of mules covered by bill of sale, 
bnt not delivered, held, that court's finding was 
not clearly contrary to preponderance of evi- 
dence. 

[Ed. Note.— For other cases, see Sales, Cent 
Kg. ( 1178; Dec. Dig. <8=»417.} 

2. Saixs «=>417— Bill of Sale— Removal of 
Pbopekty— Evidence. 

Evidence held sufficient to warrant finding 
that mules covered by bill of sale were not re- 
moved to another county and kept there con- 
trary to purchaser's order, and that latter was 
not entitled to recover from seller expense of 
returning them. 

[Ed. Note.— For other cases, see Sales, Cent 
Dig. { 1173 ; Dec. Dig. «=>417.] 

Appeal from Lee Chancery Court ; Edward 
D. Robertson, Chancellor. 

Action by J. M. Roach and another against 
D. W. Jacks and another. Decree for. plain- 
tiffs of $450 and for defendants upon cross- 
complaint tor |500, and plaintiffs appeal 
Affirmed. 

On the 21st of December, 1914, D. W. Jacks 
executed to Roach and Stansell a bill of sale, 
which, In part, reads as follows: 

"For and in consideration of my indebtedness 
to the firm of Roach & Stansell, amounting to 
about 511,000.00, and the payment by the said 
Roach & Stansell to the said D. W. Jacks of the 
sum of five hundred dollars cash in hand, the 
receipt of which is hereby acknowledged, and the 
execution by the said Roach & Stansell to the 
said D. W. Jacks of their two certain promis- 
sory notes of even date herewith, each in the 
sum of five hundred dollars, and due and pay- 
able respectively in sixty and ninety days after 
date, do hereby grant, bargain, sell and convey 
unto the said Roach & StanseUi a partnership 
composed of M. J. Roach and Walker Stansell, 
all of the following described personal proper- 
ty, now situated in Crittenden county, Arkansas, 
to wit: One levee outfit complete, composed and 
consisting of tents, wagons, plows, wheeled 
scrapers, blankets and bedding, blacksmith's 
outfit, harness and all necessary tools, fifty-four 
head of mules and one black horse, the whole 
comprising the levee outfit known as the D. W. 
Jacks outfit, now situated near Neuhardt, in 
Crittenden county, Arkansas." 

The appellants Instituted this suit against 
D. W. Jacks and his wife, alleging that, after 
the payment of $600 cash and the execution 
of the notes mentioned In the bill of sale, 



Jacks brought nine head of the mules de- 
scribed in the bill of sale to Lee county, Ark., 
without the consent of appellants, and that 
appellants were put to an expense of $69.40 
to have the mules returned. They further 
alleged that Jacks failed to deliver three 
mules included in the bill of sale, of the val- 
ue of $900. The prayer was for judgment 
in the sum of $969.40. The answer denied 
these allegations of the complaint, and pray- 
ed that appellees have Judgment against the 
appellants for the sum of $1,000 (the amount 
of the notes) with Interest 

The chancellor heard the cause upon the 
evidence and found as follows: 

"That D. W. Jacks agreed to deliver 64 mules 
to the plaintiff under the bill of sale, and that 
he only delivered 61 mules, and finds that the 
value of the 8 mules not delivered was $150 
each, and that the plaintiff is not entitled to 
recover the item of $69.46 on account of ex- 
penses for returning 9 mules from Marianna, 
Ark., to Neuhardt, Ark. And the defendant pre- 
sents in open court the notes executed by plain- 
tiffs to the defendant, dated December 21, 1914, 
for $500 each." 

The court thereupon entered a decree in 
favor of the appellants for $450, and di- 
rected that this sum be entered as a credit 
on the notes executed by appellants to ap- 
pellee D. W. Jacks, and entered a decree In 
favor of appellee Jacks, on his cross-com- 
plaint, for $500, with interest at the rate of 
6 per cent per annum from December 21, 
1914. Appellants duly prosecute this appeal. 

H. F.- Roleson, of Marianna, and H. M. 
Woods, of Augusta, for appellants. P. R» 
Andrews and J. G. Burke, both of Helena, 
for appellees. 

WOOD, J. (after stating the facts as above). 
[1] 1. Appellants concede that no questions 
of law are presented on this appeal. They 
contend that the court erred in its finding as 
to the value of the mules and in finding that 
the appellants were not entitled to recover 
the sum of $69.40 on account of the expense 
incurred by them in having the nine mules 
returned from Marianna to Neuhardt, Ark. 

Walker Stansell, one of the appellants, tes- 
tified that from the Information that he had 
regarding the outfit he would say that one of 
the mules was worth $250 or $300 ; possibly 
the other two $150 apiece. On cross-exami- 
atlon, he stated that he did not have any 



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191S.W.-1 



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2 



191 SOUTHWESTERN REPORTER 



(Ark. 



personal knowledge of the actual market val- 
ue of the mules. He was as familiar with 
the mules as he was with his own, except 
that he did not know the names of them. 
For 18 months Jacks bad been within less 
than a mile, of the work on which witness 
was continuously engaged, but he did not 
know personally whether the three mules that 
were not delivered were of the value of ¥25 
each or $300 each; did not know the whole 
bunch of mules well enough to check over 
and know the three in question. He could 
only fix the value for certainty by his knowl- 
edge of the general average of the outfit. 
His estimate of the value of the mules was 
based on his general average of the value of 
the entire outfit, and not with reference to 
any personal knowledge of the three mules. 

M. J. Roach, the other appellant, on direct 
examination was asked the following, "Have 
you any personal knowledge or recollection of 
the character of these mules, the character 
of the mules and value, the three mules that 
were missing and their value?" and answer- 
ed, "I can't recollect what shape they were 
in." He was further asked, "Could you say 
what the value of these three mules was?" 
and answered, "I cannot, because I didn't 
see them." He was then asked if he could 
remember specifically enough about the whole 
bunch of mules to say Just what was the 
character of the three that were missing, and 
answered that he had not seen them in quite 
a while and could not tell. And on redirect 
examination he was asked what was the av- 
erage value of the mules in the outfit that 
were delivered to him by Jacks, and answer- 
ed $240 to $270. He was then asked whether 
the three mules which were missing were 
average mules of the bunch, and answered 
that he could not tell ; he did not see them. 

Appellee Jacks testified concerning the 
value of the missing mules as follows: He 
did not know of but two mules that were 
missing. They were as good as any in the 
outfit. At that time he would consider that 
$150 was a fair market value of the mules 
said to have been missing. 

It thus appears that the only positive evi- 
dence of the actual market value of the three 
mules in controversy was that of Jacks. Nei- 
ther of the appellants had any personal 
knowledge of the actual value of the mules, 
and, while one of the appellants states that 
the average value of the mules in the outfit 
was $240 to $270, he did not know whether 
the three mules in controversy were of that 
value or not. Although Jacks testified that 
the mules alleged to have been missing were 
as good as any in the outfit, yet he places the 
actual market value of these mules at $150. 
The court's finding as to the value of the 
mules upon this conflictliv; evidence was not 
clearly against the preponderance of the evi- 
dence. 

[2] II. There was evidence to warrant a 



finding to the effect that, at the time the 
mules mentioned in the bill of sale were sold 
by- appellant Jacks to the appellee, nine of 
these mules were in Marlanna. The bill of 
sale called for the delivery of the mules at 
Neuhardt. Immediately after the bill of sale 
was executed, Jacks gave directions to the 
party having the mules In charge at Marlan- 
na to return them at once to Neuhardt Jacks 
was expecting to defray the expenses of re- 
turning the mules to Neuhardt He did not 
return the mules to Neuhardt because they 
were taken out of his possession. 

Stansell himself testified that he told Wells, 
the man who had the nine mules in his 
charge, that he did not want any mules that 
he was interested in to go back to Neuhardt 
until the weather conditions improved, and 
witness told Wells to hold the mules until he 
(witness) notified him what to do. Witness 
kept the mules in Marlanna, waiting for the 
weather to get better, several days, and Ihe 
weather never got so witness could send them 
by road, so he had to ship them by rail. The 
mules were subject to witness' orders In Ma- 
rlanna, and were shipped from there when 
witness wanted them shipped. Jacks had 
nothing to do with them that witness knew 
of at that time. 

Wells, who was in charge of the mules for 
Jacks at Marlanna, testified that Jacks paid 
the expenses of the mules from the time they 
arrived the night before until Stansell took 
charge of them the next morning. 

The above testimony was sufficient to war- 
rant the court in finding that the appellants 
are not entitled to recover the item of $69.40 
on account of expenses of returning the nine 
mules from Marlanna to Neuhardt 

There are no errors In the findings and 
judgment of the court, and the decree Is 
therefore affirmed. 



NOTHWANG v. HARRISON et al. (No. 72.) 
(Supreme Court of Arkansas. Jan. 1, 1917.) 

1. Evidence <8=»445(9)— Contracts— Admissi- 
bility. 

As parties may make subsequent contracts 
which vary the terms of a prior contract, in an 
action to recover the value of timber cut after 
the time limited in the contract of sale, evi- 
dence of a subsequent contract for additional 
consideration, giving defendants an extension of 
time in which to cut the timber, was admissible. 

[Ed. Ndte.— For other cases, see Evidence, 
Cent. Dig. { 2065; Dec. Dig. «=»445(9).] 

2. Trial qJ=s>252(5) — Instructions — Evi- 
dence. 

In an action to recover the value of stand- 
ing timber cnt after the time limited in the con- 
tract of sale, testimony of the defendants that 
before the expiration of the time they had ap- 
plied for and had received an extension of time, 
and for that reason did not cut the timber at 
the time granted, was sufficient proof upon 
which to base an instruction that defendants' 
act in refraining from cutting their timber with- 
in the time limited under a promise from the 



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ArfcJ NOTHWANG 

plaintiff for an extension of time would consti- 
tute a valuable consideration, sufficient to sup- 
port the claim of extension of time. 

[Ed. Note.— For other cases, see Trial, Cent. 
Dig. | 600; Dec. Dig. C=>252(5).] 

3. loos and logging €=>3(1)— contracts— 
Consideration. 

That defendants refrained from cutting 
standing timber within the time limited in the 
contract of sale under a promise of an extension 
of time by the plaintiff would constitute suffi- 
cient consideration for the agreement to extend 
the time, since an agreement as to the time or 
manner in the exercise of a legal right, when so 
acted upon that the right has become valueless, 
unless it may be enjoyed pursuant to the agree- 
ment, is sufficient consideration to support a 
contract to that effect; it not being necessary 
that the promisor derive a benefit if the prom- 
isee suffered a detriment, or disadvantage on ac- 
count of the promise. 

[Ed. Note.— For other cases, see Logs and 
Logging, Cent Dig. | 6; Dec Dig. «J=>3(1).] 

4. Tboveb and Conversion «=67— Timber— 
Instructions. 

In an action to recover the price of standing 
timber cut after the time limited in the contract 
of sale, where the evidence was conflicting as 
to whether plaintiff had granted the defendants 
an extension of time in which to cut the timber, 
the refusal of an instruction that if shingles at- 
tached and levied upon in the case were produc- 
ed from plaintiff's timber cut since the time lim- 
ited in the contract, the verdict should be for 
the plaintiff, and the attachment should be sus- 
tained, was not error. 

[Ed. Note.— For other cases, see Trover and 
Conversion, Cent. Dig. H 205-808; Dee. Dig. 
«=»67.] 

5. Attachment <8=375(3) — Wrongful At- 
tachment— Damages. 

In an action for the value of timber cut aft- 
er the time limited in contract of sale, evidence 
held to sustain a verdict for $500 for defendants 
on their counterclaim, for damage to their tim- 
ber attached. 

[Ed. Note.— For other cases, see Attachment, 
Cent Dig. i 1398; Dec. Dig. «J=375(3).] 

6. Attachment «=»375(1) — Wrongful At- 
tachment—Damages. 

In an action for value of standing timber 
cut after time limited in the contract of sale for 
which the jury found upon conflicting evidence 
that the defendants did not wrongfully cut any 
timber, the attachment of defendants' shingles 
on the theory that they were produced from tim- 
ber wrongfully cut was wrongfully sued out end 
plaintiff was liable for any damage to the shin- 
gles occasioned thereby. 

[Ed. Note.— For other cases, see Attachment 
Cent Dig. ff 1878. 1379%, 1381, 1398, 1399; 
Dec. Dig. «=b375(l).] 

Appeal from Circuit Court, Pulaski Coun- 
ty; Guy Fulk, Judge. 

Action by W. Nothwang against C. A. 
Harrison and others. Judgment for defend- 
ants, and plaintiff appeals. Affirmed. 

J no. D. Shacklef ord, of Little Bock, for ap- 
pellant Dunaway & Chamberlln, of Little 
Bock, for appellees. 

SMITH, JT. Appellant sold appellees cer- 
tain timber standing on lands which he own- 
ed on December 80, 1911, and gave them 2% 
years In which to cut and remove it Cer- 
tain timber was cut after the expiration of 



T. HARBISON ; 3 

this time by appellees, and this suit was 
brought to recover Its value. The complaint 
recited that timber had been cut on other 
lands owned by appellant which he had never 
sold appellees. There was also Included in 
the complaint a count for damages resulting 
from throwing timber and brash In a creek 
in such a manner as to dam np the creek 
and cause it to overflow appellant's lands. 
It was alleged that the timber in controversy 
had been manufactured into shingles, and 
a lien upon them was claimed and an at- 
tachment was sued out and levied upon the 
shingles. The answer denied all the material 
allegations of the complaint; and, while 
It was admitted that certain trees had been 
cut after the expiration of the time orig- 
inally granted, it was alleged that an ex- 
tension of the time had been given for cut- 
ting these trees. Appellees asked for dam- 
ages on account of the attachment and to 
compensate the cost of repairs they were 
compelled to make to a road used by them 
In hauling out their shingles which appel- 
lant had obstructed. A timber deed was 
executed at the time the original contract 
was entered Into, which described the land 
upon which the timber had been sold, the 
same being four 40-acre tracts of land, for 
the consideration of $600. Appellees erected 
a mill to manufacture this timber, and aft- 
er Its completion it was ascertained that the 
mill was not situated on any one of the 40- 
acre tracts of land described in the deed. It 
was contended by appellees that the mill 
was on land on which they had bought the 
timber, as they claimed to have bought all of 
appellant's timber, but they later discovered 
that the deed did not describe the land on 
which the mill was located. Appellees tes- 
tified that when this discovery was made, 
they negotiated with appellant for the sat- 
isfaction of the demand for the timber so 
erroneously cut, and for the extension of the 
time to cut the timber described in the deed. 
These negotiations were concluded by the 
payment of $100 to appellant, who executed 
the following receipt: 
"Little Maumelle, Arkansas, March 26, 1918. 

"Received one hundred from Harrison broth- 
ers for balance of adjoining the timber they 
bought from me on same condition as the other, 
and I agree to extend the lease for six months 
after the original lease expires. 

"[Signed] W. Nothwang." 

[1] Appellant contends the extension men- 
tioned was for the purpose only of allowing 
appellees to manufacture the timber they had 
on hand at the mill after the expiration of 
the lease on' January 1, 1915. But this is 
controverted by appellees, and this difference 
has been decided In appellees' favor by the 
Jury. It is said that the introduction of this 
writing tended to vary the terms of the orig- 
inal deed, Inasmuch as appellees were per- 
mitted to testify In regard to the negotia- 
tions which led up to Its execution. But 
such is not the case. Appellees are not at- 



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191 ■SOUTHWESTERN REPORTER 



(Ark. 



tempting to vary the original contract They 
simply sought to show that subsequent to 
the execution of the original contract, and 
ior the additional consideration, they bad 
obtained a farther extension of time to cut 
the timber and had, for the same additional 
consideration, paid for the timber erroneous- 
ly cut. No rule of evidence would exclude 
such testimony. Parties may make subse- 
quent contracts which vary the terms of a 
prior contract 

It is Insisted that the court erred In giv- 
ing, at appellees' request Instruction num- 
bered 8, which reads as follows: 

"You are instructed that if you find from the 
evidence that defendants refrained from cutting 
their timber, which they could have had time to 
cut during the remainder of the year 1914, un- 
der a promise from the plaintiff that they could 
cut and remove their timber after January 1, 
1915, then this would constitute a valuable con- 
sideration, sufficient to support the claim of ex- 
tension of time." 

[1] It la said, first that the Instruction is 
erroneous because there is no proof upon 
which to base it But appellees testified that 
before the expiration of the time to cut the 
timber they represented to appellant that on 
account of the depressed timber market they 
would like an extension of time beyond Jan- 
uary 1, 1916 (the time specified In the tim- 
ber deal), to cut the timber, and that ap- 
pellant acceded to this request whereupon 
they did not cut the timber in the time grant- 
ed In the deed, but cut It in the extended 
time. 

[3] It is said this promise Is void as being 
unsupported by any consideration. But we 
do not think so. Appellees would have ex- 
ercised a legal right within the time limited 
except for appellant's promise that the right 
might thereafter be exercised. It may be 
true that appellant derived no profit or ad- 
vantage from this agreement, but it is not 
essential that he should have done so. it is 
sufficient if the party to whom the promise 
was made suffered some detriment or disad- 
vantage on account of the promise. An 
agreement as to the time or manner of the 
exercise of some legal right when so acted 
upon that the right has become valueless 
unless It may be enjoyed pursuant to the 
agreement Is a sufficient consideration to 
support a contract to that effect In Page 
on Contracts, § 274, a valuable consideration 
is defined as follows: 

"Sec. 274. A valuable consideration is some 
legal right acquired by the promisor in consid- 
eration of his promise, or foreborne by the prom- 
isee in consideration of such promise. A com- 
mon form of stating the same principle is that a 
valuable consideration for a promise may consist 
of a benefit to the promisor, or a detriment to 
the promisee. 

"The use of 'benefit' and 'detriment* in this 
connection needs explanation. While correct if 
properly understood, it is liable to misconstruc- 
tion. 'Benefit' does not refer to any pecuniary 
gain arising out of the transaction, nor 'detri- 



ment* to any pecuniary loss. It Is not possible 
to Watt £91 the transaction is concluded and the 
books balanced to see whether a consideration 
existed originally. 'Benefit* as used in this rule 
means that the promisor has, in return for his 
promise, acquired some legal right to which he 
would not otherwise have been entitled; 'detri- 
ment' means that the promisee has, in return for 
the promise, forborne some legal right which he 
would otherwise have been entitled to exercise. 
The question of the ultimate financial loss or 
gain is foreign to the doctrine of consideration, 
if the parties each have received what they have 
agreed upon." 

See, also, sections 67 and 69 of the article 
on "Contracts" In 6 Ruling Case Law. See, 
also, Elliott on Contracts, { 203; Beach on 
the Modern Law of Contracts, I 167; 1 Par- 
sons on Contracts, p. 482 ; Hammon on Con- 
tracts, p. 675. 

Many cases are cited by the above authori- 
ties in support of the law as there announced. 

[4] It is earnestly Insisted that the court 
erred in refusing appellant's Instruction 
numbered 7, as follows: 

"Ton are further instructed that if you find 
from the testimony that any of the shingles at- 
tached and levied upon by the sheriff in this case 
were shingles produced from the plaintiffs tim- 
ber, which was cut since the first of 1915, then 
your verdict will be for the plaintiff, and you 
will sustain the attachment" 

A consideration of this Instruction would 
Involve the discussion of the evidence in the 
case, which appellant says Is insufficient to 
support the verdict The instruction set 
out would have been a proper one had the 
testimony in appellant's behalf been undis- 
puted, but such is not the case. Indeed, there 
is, to the contrary, a sharp conflict in the 
testimony upon most of the questions of fact 
involved; but these conflicts have been re- 
solved by the verdict of the Jury against 
appellant's contention. 

[I, I] A verdict was returned by the Jury 
In appellees' favor upon their counterclaim 
In the sum of S500, and we cannot say this 
verdict is unsupported by the evidence, or 
is excessive. The Jury has found, upon con- 
flicting evidence, that appellees did not 
wrongfully cut any of appellant's timber, and 
consequently the attachment was wrongful- 
ly sued out and appellant was liable for 
any damage to the timber occasioned there- 
by. There was also proof to the effect that 
appellant had torn up a road which appel- 
lees had prepared for their use In hauling 
out the products of their mill, and when 
this road was repaired it was again obstruct- 
ed by appellant, and the timber was dam- 
aged on account of the delay thus occasion- 
ed. But all of these -questions were submit- 
ted to the Jury under instructions which 
properly declared the law applicable to the 
respective contentions of the parties. 

Finding no prejudicial error, the judgment 
of the court below is affirmed. 



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Ark) 



MoBRIDE v. JETNA LIFE INS. 00. 



McBRIDH t. jBTNA LIFE INS. 00. 
(No. 60.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

1. Insurance «=>514— Extent of Liability 
— indemnity insurance. 

In an action on insurance policy indemnify- 
ing coal mining company against damages paid 
to injured employes, the evidence showed that 
on execution of judgment against employer, his 
property was sold to the employe who credited 
$5,000 on judgment and who sold property un- 
der a prior agreement to another coal company 
for $1,000. Held a finding that the true value 
of the property levied and sold was not $5,000, 
but $1,000, for which amount the insurer was 
liable. 

[Ed. Note.— For other cases, see Insurance, 
Cent. Dig. g 1208 ; Dec. Dig. «=>614.] 

2. Insurance <g=514— Extent of Liabiutt 
— Indemnity Insurance. 

Under insurance policy Indemnifying the 
assured against loss or expenses actually sus- 
tained and paid by reason of injuries to em- 
ployes, there muBt be an actual loss sustained 
by reason of an enforced payment of judgment 
liability by the assured before the obligation of 
the insurer matures. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. g 1298; Dec. Dig. «=>514J 

& Insurance <8=>614— Extent of Liabiutt 

— Indemnity Insurance. 

Under insurance policy indemnifying the 
employer against losses and expenses paid by 
reason of injuries to employes where property 
of the insured was sold on execution, the real 
value of such property was the amount for 
which the insurer was liable, and the fact that 
the maximum amount of liability under the in- 
surance policy was credited on the judgment 
by the employ* did not determine the liability 
of the insurer. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. g 1298; Dec. Dig. «=»514.] 

4. Insurance «=»513— Actions— Costs. 

Under an insurance policy indemnifying an 
employer against damages paid for injuries to 
employes, the plaintiff to whom the indemnity 
policy was assigned was entitled to recover only 
such costs as were paid out in the litigation 
and adjudged against employer, and was not 
entitled to recover court costs incurred in efforts 
to collect the judgment. 

[Ed. Note.— For other cases, see Insurance, 
Dec. Dig. «=»518.] 

5. Insurance <8=>624(1) — Indemnity — Ac- 
tions. 

Where employer assigned to injured employe 
insurance policy, indemnifying him against dam- 
ages paid for injuries to employes, and joined 
as plaintiff in suit by assignee against insurer, 
the latter could not resist recovery on ground 
that policy stipulated against assignments. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. gg 1667, 1558, 1562, 1563, 1567; 
Dec. Dig. «L824(1).J 

6. Insurance e=>594 — Contracts — As- 
signment. 

Under insurance policy indemnifying an em- 
ployer against damages paid for injuries to em- 
ployes, a provision that assignments under such 
policy are void unless consented to by the insur- 
er, field to apply only to assignments during the 
lifetime of policy, and not to affect validity of 
an assignment made after liability had accrued. 

[Ed. Note. For other cases, see Insurance, Cent 
Dig. gg 1465-1458, 1483, 1485; Dee.Dig. <8=>594.] 



7. Insurance <8=514— Indemnity Insurance 
—Construction of Contract— "Payment." 

Under an insurance policy indemnifying em- 
ployer against damages paid for injuries to em- 

gloyes, the fact that the damages were paid 
y an appropriation of the employer's property 
on execution did not prevent recovery from 
the insurer notwithstanding the provision of the 
policy that no action should lie except for loss 
"actually sustained and paid in money," since 
the" payment in property was equivalent to pay- 
ment in money. 

[Ed. Note. — For other cases, see Insurance, 
Cent. Dig. g 1298; Dec Dig. «=»514. 

For other definitions, see Words and Phrases, 
First and Second Series, Payment] 

8. Insurance <8=>514— Indemnity— Interest. 

In an action on insurance policy indemnify- 
ing an employer against damages paid for inju- 
ries to employes, interest should be allowed 
only from the date of payment by the insured, 
and not from the date of the original judgment 
[Ed. Note.— For other cases, see Insurance, 
Cent Dig. g 1298; Dec. Dig. «=a>514.] 

Appeal from Pope Chancery Court; Jor- 
dan Sellers, Chancellor. 

Action by W. F. McBride and another 
against the JEtna Life Insurance Company. 
From judgment for plaintiff, the plaintiff 
named and the defendant Insurance Company 
both appeal. Modified and affirmed. 

U. L. Meade, of Russellvllle, and Pace, 
Seawell & Davis, of Little Rock, for appel- 
lants. Roscoe R. Lynn, of Little Rock, for 
appellee. 

McCULLOCH, O. J. This is an action in- 
stituted to recover on an Indemnity policy 
issued by the defendant, Mtaa. Life Insur- 
ance Company, to the Arkansas Anthracite 
Coal Company, and by the latter assigned to 
W. F. McBride. The suit was instituted for 
the benefit of plaintiff McBride, but the Ar- 
kansas Anthracite Coal Company, the original 
holder of the policy, joined as a party plain- 
tiff. 

The undertaking on the part of the Insur- 
ance company, set forth In the policy, Is to 
indemnify the assured — 
"against loss and expense arising or resulting 
from claims upon the assured for damages on 
account of the bodily injuries or death, acci- 
dentally suffered or alleged to have been suffer- 
ed, by an employe or employes of the assured, 
* * * whether said injuries or death are acci- 
dentally suffered or alleged to have been suf- 
fered." 

And the policy further provides that : 
"No action shall lie against the company to 
recover for any loss, and for expense under this 
policy, unless it shall be brought by the assured 
for loss or expense actually sustained and paid 
in money by him after the actual trial of the is- 
sue." 

The liability of the company la by the 
terms of the policy limited to the sum of 
$5,000 for loss sustained through the death 
or injury of a single person. There is also 
a clause In the policy which provides that : 

"No assignment of interest under this policy 
shall be valid unless the written consent of the 
company is indorsed hereon." 



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191 SOUTHWESTERN REPORTER 



(Ark. 



McBrlde was an employe of the Arkansas 
Anthracite Goal Company, and while working 
for his employer in a coal mine received per- 
sonal Injuries, for which he recovered Judg- 
ment in an action at law for the sum of 
$16,500, and costs of suit McBrlde's injury 
occurred during the life of the policy, and 
the defendant concedes that it is liable for 
loss sustained by the coal company, the as- 
sured, for any sums actually paid by the 
latter In satisfaction of the Judgment or any 
part thereof. 

McBrlde's Judgment against the coal com- 
pany was rendered in November, 1913, and 
the sum of $426.25 was paid to McBrlde by 
the coal company on March 13, 1914. Subse- 
quently the property of the coal company 
was placed in the hands of the receiver by 
an order of the chancery court in a suit In- 
stituted by McBrlde; the property consisting 
of some live stock and a lease on about 300 
acres of mining lands, and the houses built 
thereon. The terms of the lease under which 
the coal company held the lands provided for 
the payment of royalties which amounted to 
about $2,500 a year, and the proof shows that 
there were debts in the way of back pay 
rolls owing by the coal company amounting 
to something over $2,000. The live stock 
was sold separately by the commissioner of 
the chancery court, and brought the Bum of 
$77.60, which was paid over to McBrlde, and 
he bid In the leasehold and other property of 
the coal company at the commissioner's sale 
for the sum of $5,000, and credited that 
amount on the judgment; but his bid was 
made pursuant to an agreement with the 
Southern Anthracite Coal Mining Company 
to the effect that he would bid that amount 
for the property and transfer his bid to said 
Southern Anthracite Coal Mining Company 
for the sum of $1,000, payable In cash. That 
agreement was carried out, and said amount, 
paid to McBrlde by the Southern Anthracite 
Coal Mining Company, was all he received 
out of the purchase price of the sale. The 
sale was made on January 2, 1915, and was 
subsequently confirmed by the chancery court 
and a deed made by the commissioner to the 
Southern Anthracite Coal Mining Company. 

[1] The Arkansas Anthracite Coal Com- 
pany, on February 4, 1914, assigned the pol- 
icy to McBrlde, which was before the afore- 
mentioned payment of $426.25. This action 
was originally instituted at law, but by 
consent of parties was transferred to the 
chancery court. Considerable testimony was 
submitted to the chancellor, directed mainly 
to the question of the actual value of the as- 
sets of the Arkansas Anthracite Coal Com- 
pany at the time of the sale by the commis- 
sioner, in order to determine whether the 
amount of the payment to McBride should 
be treated as one made In good faith for 
the full amount of the bid, or whether the 
real payment only amounted to the sum of 
$1,000, which was in fact paid over to him 
by the Southern Anthracite Coal Mining 



Company. There Is a sharp conflict in that 
testimony, but we are of the opinion (hat the 
chancellor correctly found that, considering 
the royalties due under the lease and the 
back pay r^olls due by the coal company, 
which constituted a fixed liability and had to 
be discharged before the mine could be op- 
erated, the sum of $1,000, which was actual- 
ly paid over to McBrlde, was a fair value for 
the equity of the coal company, and that that 
sum should be treated as the actual amount 
paid by the coal company on the Judgment. 

The chancellor found that the defendant 
Insurance company was liable for said sum 
of $426.25, paid as aforesaid to plaintiff Mc- 
Brlde by the coal company, and the sum of 
?77.60, the amount for which the live stock 
and other personal property was sold, and 
said sum of $1,000 received out of the pro- 
ceeds of the sale of the lease, together with 
the $191.85 costs in the original suit, making 
a total of $1,695.70; and, after adding in- 
terest since the date of the original judg- 
ment and deducting a credit of $237 on on' 
paid premiums, rendered a decree in accord- 
ance with that finding. The plaintiff Mc- 
Brlde appealed, and the defendant Insurance 
company has cross-appealed. 

[2] The contention of plaintiff is that the 
Judgment should have been for the full 
amount of the $5,000, treating the total 
amount of his bid for the property at the 
commissioner's sale as a payment on the 
Judgment; but, as before stated, we are of 
the opinion that the chancellor was correct 
in holding that the sum of $1,000 was the 
full amount actually paid, and that that 
should be the limit of the plaintiff's recovery 
upon that Item of payment. This court has 
heretofore decided that an insurance policy 
of this kind constitutes a contract of Indem- 
nity, and is not one to assume liability, and 
It therefore follows that there must be an ac- 
tual loss sustained by reason of an enforced 
payment of the judgment liability of the as- 
sured before the obligation of the insurer ma- 
tures. This is the distinction between that 
kind -of Insurance and what Is ordinarily 
termed "liability insurance." Fidelity & Cas- 
ualty Co. v. Fordyce, 64 Ark. 174, 41 S. W. 
420; American, etc., Ins. Co. v. Fordyce, 62 
Ark. 562, 36 S. W. 1051, 54 Am. St. Rep. 305. 

[3] The company only indemnifies the as- 
sured against actual loss, and the question 
to be determined Is what the actual loss 
was, and when the proof Is considered in its 
proper light It is found that the sum of 
$1,000 was the extent of the loss of the as- 
sured on that payment The fact that the 
sum of $5,000 was actually credited on the 
judgment does not create a liability, not- 
withstanding that it reduced the liability 
under the judgment to that extent for what- 
ever the credit may have been on the judg- 
ment the actual loss sustained by the assured 
was the $1,000 which was paid over to the 
plaintiff McBrlde out of the proceeds of the 
sale. Whatever may be the differences of 



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ArkJ 



BRISTA v. STATE 



7 



opinion between the witnesses concerning the 
value of the property, the best evidence of 
the real value is the net price which the 
plaintiff agreed to accept and which' the 
Southern Anthracite Coal Mining Company 
agreed to pay. Anything more than that 
would not constitute a bona fide payment on 
the judgment 

[4] The plaintiff also contends on his ap- 
peal that he should have been allowed to re- 
cover the court costs Incurred In his various 
efforts to collect the judgment, but we are 
of the opinion that the chancellor was cor- 
rect In holding that he was only entitled to 
recover the. costs paid out in the original lit- 
igation, and which was adjudged In Mo- 
Bride's favor against the teoal company. 
That amount he was entitled to recover for 
the reason that the payment of those costs 
fell within the Indemnity provided by the 
policy. Maryland Casualty Co. v. Omaha 
Electric Light * Power Co., 157 Fed. 514, 85 
C. C. A. 106. 

[5, a] On the part of defendant it Is con- 
tended that the decree was erroneous In 
several respects, and should be reversed. 
The first contention is that the assignment 
of the policy was unauthorized, and vested 
no right of action in the plaintiff McBrlde; 
but since the original holder of the policy, 
as assignor, Is joined as a plaintiff, it Is not 
a matter of any concern to the defendant 
whether the policy was properly assigned or 
not. There is undoubtedly a liability on the 
part of the company to the extent of the 
amount paid out In satisfaction of the orig- 
inal judgment, and it is a matter of no con- 
cern to the company which of the plaintiffs 
recover It so long as It Is protected by the 
presence of both' the assignor and the as- 
signee as parties plaintiff in the action. It 
is certain, however, that the clause In the 
policy against assignment without consent 
of the company applies only to assignments 
during the lifetime of the policy, and not 
to an assignment of liability which has 
already accrued under the policy. Mary- 
land Casualty Co. v. Omaha Electric Light 
& Power Co., supra. 

[7] Nert It is Insisted that there can be 
no recovery of the $1,000, because It was 
not paid in money, but resulted from the ap- 
propriation of the coal company's property. 
Stress Is laid in the argument on the ex- 
press provision of the policy that no action 
shall lie except for loss or expense "actually 
sustained and paid In money," but we 
think the payment In the sale of the prop- 
erty was equivalent to payment in money 
and fell within the terms of the policy. It 
is scarcely fair to construe the language to 
mean that it applied only to currency actu- 
ally handed over and not to a bona fide pay- 
ment made in other property. If that con- 
struction were put upon the policy it would 
be absolutely worthless to an assured who 
was unable to pay money and whose prop- 

e*=*For other oases 



erty would be subjected to sale, and he would 
thus be deprived of the indemnity for which 
he had contracted. Such result should not 
be permitted to follow under the contract, 
unless the language admits of no other con- 
struction. , 

[8] The contention of the defendant with 
respect to costs has already been disposed of 
in the discussion of the plaintiff's contention 
in that respect We are of the opinion, 
though, that the court erred In allowing in- 
terest from the date of the original judg- 
ment instead of the date of the payment 
The actual loss of the insured, which the in- 
surer undertook to indemnify against, oc- 
curred when the payment was made, and 
interest could only begin to run at that date. 
The assured enjoyed the benefit of the reten- 
tion of the amount for which it was liable 
until the date of payment and therefore was 
not entitled to recover interest 

The decree of the chancellor will therefore 
be modified so as to allow judgment for In- 
terest on the several payments from the re- 
spective dates on which they were made, and 
the clerk of this court will make the compu- 
tation accordingly. In all other respects the 
decree will be affirmed. 



BRISTA v. STATE. (No. 83.) 

(Supreme Court of Arkansas. Jan. 8, 1917.) 

Homicidk <&=»15, 29 — "Murdeb" — Evidence 
— sufficienct. 
Where accused, with a number of other 
persons, armed with pistols and shotguns, went 
to a house in search of a negro, and on being re- 
fused admittance certain persons shot through 
the door and the walls and killed a young girl, 
their willful, deliberate, malicious, and premedi- 
tated shooting resulting in the killing constitut- 
ed a "murder," and, though accused did not fire 
the fatal shot he was guilty of murder by being 
present aiding, abetting and assisting in the 
offense. 

[Ed. Note.— For other cases, see Homicide, 
Cent Dig. {§ 21, 47; Dec. Dig. <g=>15, 29. 

For other definitions, see Words and Phrases, 
First and Second Series, Murder.] 

Appeal from Circuit Court Union County; 
Chas. W. Smith, Judge. 

Dee Brlsta, under Indictment for murder 
in the first degree, was convicted of invol- 
untary manslaughter, and be appeals. Af- 
firmed. 

Appellant was Indicted for murder In the 
first degree; the Indictment In apt words, 
charging him with that crime committed by 
the killing of one Sweetie Stacher. 

The testimony for the state tended to show 
substantially the following facts: On the 
night of the 14th of May, 1915, the appellant 
who is a white man, had an altercation with 
a negro, who is designated in the record as 
"Sky Blue." The fight occurred in the town 
of Felsenthal. The negro knocked appellant 
down. Immediately after the fight appellant 
went to his house, got his pistol, and came 



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191 SOUTHWESTERN REPORTER 



(Ark. 



back to look for the negro. In company with 
three other white men, they surrounded a 
restaurant in the town in search of Sky 
Blue. It was about 11 o'clock at night They 
went to the door of the restaurant and told 
them to open the door, which they refused to 
do, and several shots were fired. Appellant 
then went through the restaurant looking for 
the negro, Sky Blue. Then appellant and 
his companions were Joined by others, and 
they went to what they thought was Sky 
Blue's house. Appellant and one of his com- 
panions went to the front of the house and 
called for Sky Blue. The negroes in the 
house told appellant and his companions that 
Sky Blue was not there. Appellant and one 
of his companions told them that if they did 
not open the door they would shoot it open. 
Nobody answered, and they commenced 
shooting. The negroes then opened the door, 
when it was discovered that one of the shots 
had struck the little baby girl, Sweetie Stach- 
er, in the head, "shooting out her brains" and 
killing her. One of the party had an auto- 
matic shotgun, and appellant and another of 
the party had pistols. Two different pistol 
shots were fired at the front of the house. 
One pistol flashed on one side of the door and 
the other on the other side. 

The appellant, after testifying as to the 
fight with Sky Blue, and to the fact that he 
bad armed himself, and had gone in compa- 
ny with others to where they had been In- 
formed Sky Blue lived, and to the fact of the 
shooting substantially as shown by the testi- 
mony of the witnesses for the state, further 
testified: "I did not fire a single shot down 
there at that house, as my pistol was already ' 
empty." He further testified that he saw 
the flash of the pistols that were fired into 
the house. One of the pistols was fired by a 
man by the name of Matthews, and another 
by a man by the name of Hinson. There 
were first two shots fired and then ten or 
fifteen shots fired, in all. Appellant, in com- 
pany with others, went into the house, but 
did not find the negro they were looking for. 
After they left the house, one of the parties 
in the company, Rufus Ely, went back to the 
house and told the negroes not to know any- 
body in the crowd; if they did, he would 
come back and kill them. When appellant 
and his companions went down to the house, 
appellant did not know that they were going 
to fire into it. He did not expect to find the 
negro Sky Blue down there. 

Upon the above facts, appellant was found 
guilty of involuntary manslaughter. He filed 
a motion for a new trial, and assigned as er- 
ror that the verdict was contrary to the law 
and contrary to the evidence, and that the 
court erred in giving separately instructions 
for the state numbered 1 to 13, Inclusive. 
From a judgment of the court sentencing him 
to Imprisonment in the state penitentiary 



for a period of six months, he prosecutes this 
appeal. 

Wallace Davis, Atty. Gen., and Hamilton 
Moses, Asst Atty. Gen., for the State. 

WOOD, J. (after stating the facts as above). 
The willful, deliberate, malicious, and pre- 
meditated shooting and Breaking into the 
house, under the circumstances shown, re- 
sulting in the killing of Sweetie Stacher, as 
charged in the Indictment, constituted mur- 
der instead of manslaughter. The jury, hav- 
ing accepted the testimony on behalf of the 
state tending to show that appellant was one 
of the parties who did the shooting, should 
have returned a verdict against him for mur- 
der, Instead of manslaughter. Even if ap- 
pellant did not fire the fatal shot, the undis- 
puted evidence shows that he was present, 
aiding, abetting, and assisting in the wicked 
and .malignant acts of lawlessness which 
resulted in the death of this little girl. He 
was therefore guilty, according to his own 
testimony and the undisputed evidence, of 
murder instead of manslaughter. 

There are no prejudicial errors In the rec- 
ord, and the judgment is therefore affirmed. 



DRAINAGE DIST. NO. 7 et al v. TERRY. 
(No. 78.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

L Drains «s>14(2) — Establishment or 
Drainage District— Notice— Sufficiency. 
Drainage Act 1909 (Acts 1909, p. 829, No. 
279) i 84, provides that the act shall not repeal 
the drainage laws then in force, but is an alter- 
native system, and that any district then or- 
ganized or thereafter organized under the ex- 
isting statute might become a drainage district 
under the terms of the act of 1909, upon a peti- 
tion of three owners of real property in the dis- 
trict and notice of the application published in 
a newspaper, and if the court, after hearing, 
deems it most advantageous to the property 
owners of the district. Section 84 is re-enacted 
without change by Acts 1911, p. 32, No. 54, 
except that it shall not apply to one county. 
Acts 1911, p. 24, No. 49, amends Acts 1907, 
p. 279, No. Ill, | 7, dealing with the collec- 
tion of overdue assessments. Acts 1911, p. 108, 
No. 136, amends Drainage Act 1909, § 12, provid- 
ing for the levy of additional assessments. Acts 
1911, p. 193, No. 221, amends sections 1, 2, 3, 
4, and 34 of the Drainage Act of 1909, the 
amendment of section 34 being that if a ma- 
jority of the landowners of the district, or the 
owners of a majority of the acreage therein, 
petition for the adoption of the act of 1909, 
the county court must make an order establish- 
ing a drainage district under the act of 1909. 
Three owners of real property in respondent 
drainage district published a notice that: "No- 
tice is hereby given that • * • three own- 
ers of real property within drainage district 
No. 7 have petitioned the county court to con- 
stitute them a drainage district under the 
terms of the drainage laws passed by the Leg- 
islature in the year 1911." Held that, although 
all persons are charged with knowledge of the 
amendatory acts and their effect, a landowner 
is not required to take notice of a proceeding 
to establish a drainage district under the act 



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Ark.) 



DRAINAGE DI8T. NO. 7 ▼. TKRBT 



9 



of 1906 until notice has been published and Ju- 
risdiction thereby conferred upon the court, 
so that the notice published, although employ- 
ing a portion of the language of the statute, 
was not sufficient, since it was not so definite 
and certain that one reading it might ascertain 
from it that it was proposed to constitute as an 
organized drainage district a district created 
under the act of 1909, without reference to 
other sources of information. 

[Ed. Note.— For other cases, see Drains, Cent 
Dig. { 6; Dec. Dig. «=>14(2).] 

2. Drains «=»14(4) — Proceedings tor Or- 
ganization — Coixatbrai. Attack — Cm- 

TIOBARI. 

The' jurisdiction of the county court to en- 
tertain a proceeding for the establishment of a 
drainage district, being a case where jurisdic- 
tion is to be exercised in a special manner, can 
be questioned in collateral attack by certiorari 
to review the order establishing the district 

Note.— For other cases, see Drains, Cent 
| 6; Dec. Dig. <S=»14(4)J 

Appeal from Circuit Court, Mississippi 
County; W. J. Driver, Judge. 

Certiorari In the circuit court by B. M. 
Terry against Drainage District No. 7 and 
others, to review an order of the county 
court constituting a drainage district From 
an /order of the circuit court, quashing the 
proceedings In the county court, respondents 
appeal. Affirmed. 

J. T. Cost on, of Osceola, for appellants. 
Coleman & Lewis, of Little Bock, and Little 
& Lasley and O. A. Cunningham, all of 
Blytheville, for appellee. 

SMITH, J. A number of propositions are 
discussed in the very excellent briefs in this 
case, but we find a single question decisive 
of all of them, and will therefore consider 
this question only. 

[1] Drainage district No. 7 was organized 
under the general drainage law of 1903, con- 
tained In sections 1414-1460 of Klrby'g Di- 
gest Later three persons who are owners 
of real property in this district caused the 
following notice to be published: 

"Drainage Notice. 

"Notice is hereby given that 8. E. Simonson, 
R. C. Rose and W. O. Anthony, three owners 
of real property within drainage district No. 7, 
have petitioned the county court to constitute 
them a drainage district under the terms of the 
drainage laws passed by the Legislature in the 
year 1011. 

"Notice is further given that said petition 
will be beard on the first Monday in Novem- 
ber, 1915. W. M. Taylor, County Judge. 

"J. H. Long, Oounty Clerk." 

The county court made an order constitut- 
ing drainage district No. 7 a drainage dis- 
trict under the provisions of the drainage 
act of 1909 (Act No. 279. p. 829, Acts of 1909). 
The circuit court held, upon a review of 
this proceeding upon certiorari, among other 
things, that this notice did not meet the re- 
quirements of the law, and that therefore the 
county court did not acquire jurisdiction to 
make the requested change. This section 
reads as follows: 



"See. 84. This act shall not repeal the drain- 
age laws now in force, but it is an alternative 
system; and the drainage districts may be or- 
ganized under this act, or under the statutes 
which are in force at the time of the passage 
hereof. Any district which has heretofore been 
organized, or which may be hereafter organized 
under the existing statutes, may become a drain- 
age district under the terms of this act as fol- 
lows: If three owners of real property within 
any such district shall petition the county court 
to constitute them a drainage district under 
the terms hereof, the county court shall give no- 
tice of the application by two weeks' publication 
in some newspaper published and having a 
bona fide circulation in the county, and of a 
time when said petition will be heard. All own- 
ers of real property within the district shall 
have the right to appear and contest the said 
petition or to support the same. The county 
court shall hear the evidence and shall either 
grant the petition or deny the same, as it deems 
most advantageous to the property owners of 
the district; and if it grants the petition the 
said district shall have all toe rights and pow- 
ers and be subject to all the obligations pro- 
vided by the terms of this act; provided, how- 
ever, that if a majority of the landowners of 
the district, or the owners of a majority of the 
acreage therein, petition for the adoption of 
this act, the county court must make an order 
declaring that such district shall henceforth be 
governed by the terms of this act; and such 
duty may be enforced by mandamus." 

We think the court below correctly held 
the notice to be Insufficient Such notice 
should be so definite and certain that one 
reading it might ascertain from it Just what 
was Intended without reference to any ex- 
traneous matter or other source of Informa- 
tion. The notice should definitely apprise 
the landowner who reads it and who has 
no other information on the subject that it 
is proposed to constitute a drainage district 
which had been organized under the act 
found In Kirby*s Digest, a district under the 
act of 1909, supra. A landowner In this 
district might not know who Simonson, Rose, 
and Anthony were, and the statement that 
they were property owners within drainage 
district No. 7, and had petitioned the court 
"to constitute them a drainage district under 
the terms of the drainage laws passed by the 
Legislature in the year 1911" falls far short 
of stating that the petitioners will request 
the court to change the operation and control 
of a drainage district organized under the 
provisions of the statute found in Klrby's 
Digest to the alternative system provided 
for in the act of 190&, supra. This change 
is authorized by section 34 of the Drainage 
Act of 1909, which provides that the act of 
which it is a part shall not repeal the prior 
law, although both acts take up the entice 
subject of drainage and each' provides a com- 
plete drainage system, but section 34 of this 
last act provides that the last act is an al- 
ternative and not a substituted system. 
This section 34 is re-enacted without change 
as Act 84 of the Public Acts of 1911,. p. 32, 
except that the amended act provides that 
this section 84 shall not apply to Poinsett 
county. In effect, therefore, Act Noj 64 of 



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191 SOUTHWESTERN REPORTER 



(Ark. 



the Public Acta of 1811 is a special act which i 
exempts Poinsett county from the provisions 
of a section of a general act 

Other drainage legislation of 1911 of a gen- 
eral nature Included Acts 49, 138, and 221. 
Act No. 49 purports to amend section 7 of 
Act No. 8 of the Acts of 1907, but In fact 
amends section 7 of Act No. Ill of the Acts 
of 1907, and deals with the collection of over- 
due assessments, and provides for the no- 
tice to be given in the proceedings to collect 
them. Act No. 186 amends section 12 of Act 
No. 279 of the Acts of 1909, and provides for 
the levy of additional assessments of taxes 
against the betterments. Act No. 221 amends 
sections 1, 2, 3, 4, and 34 of the Drainage Act 
of 1909. The amendment to section 84 is to 
the effect that If a majority of the landown- 
ers of the district, or the owners of a major- 
ity of the acreage therein, petition for the 
adoption of the act of 1909, the county court 
must make an order, declaring that such dis- 
trict shall thereafter be governed by the 
terms of this act, and shall appoint commis- 
sioners of his own selection who shall carry 
the act into effect, wtlh a proviso that the 
act should not apply to certain drainage dis- 
tricts in Poinsett county nor to Orlttenden 
or Phillips counties. 

All persons must be and are charged with 
knowledge of those amendatory acts and of 
their effect upon the statutes which they 
purport to amend, but nothing In any of 
these acts requires the landowner to take 
notice of a proceeding similar to the one now 
under review until a notice conforming to the 
law has been published and (jurisdiction 
thereby conferred upon the court. It Is urg- 
ed that the notice employs substantially a 
portion of the language of the act authoriz- 
ing this proceeding, and is therefore suffi- 
cient But it employs a portion only of such 
language, and it is only by intendment that 
one reading the notice might conclude that 
three property owners within a drainage dis- 
trict which had been established under one 
act were petitioning the county court to 
transfer the operation and control of that 
district from the provisions of the act un- 
der which it was created to the provisions of 
another act The notice should clearly and 
specifically declare this purpose, and, having 
failed to do so, we conclude that the court 
below was correct in holding the proceedings 
had thereunder to be void. 

[21 It is insisted that the question here 
considered could properly Be raised only by 
appeal, and that the validity of the orders 
of the county court cannot be questioned in 
a collateral attack on certiorari to review 
these orders. But the contrary was held 
in the case of St L., I. M. ft S. R. Co. v. 
Dudgeon, 64 Ark. 108, 40 S; W. 786, in which 
case it was said that where Jurisdiction is 
to be exercised In a special matter, Inquiry 
may be made even in a collateral attack as 
to whether or not those Jurisdictional re- 



quirements have been complied with. It ap- 
pears here that the Jurisdictional require- 
ment was not met, and we therefore affirm 
the action of the circuit court in quashing 
the proceedings in the county court 



LONDON v. McGEHEE. (Nos. 48, 104.) 

(Supreme Court of Arkansas. Dec. 18, 1916. 
On Rehearing Jan. 15, 1917.) 

1. Appeal and Erbob <s=»907 (2)— Review— 
Pbesumptions— Evidence Not in Record. 

Where the record shows that the cause was 
heard on oral testimony which has not been 
brought into the record by bill of exceptions, the 
Supreme Court will presume, on appeal, that ev- 
ery fact necessary to sustain the judgment was 
proved, where evidence adduced at the proper 
time would have justified the court's ruling. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent. Dig. if 2911-2913, 2915, 2916; 
Dec. Dig. «=»907(2)J 

2. Appeal and Ebbob <s=>301 — Presenting 
Questions Below— Motion foe New Trial. 

Alleged errors not presented in the motion 
for a new trial, and which do not appear on the 
face of the record, cannot be raised for the first 
time in the Supreme Court. x 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. fi 1743, 1753-1755; Dec. Dig 
•3=301.] 

3. Appeal and Ebbob <8=»1026 — H asm less 
Ebbob— Party Not Entitled to Recover. 

On appeal from a judgment for the' pur- 
chaser of lands at the trustee's foreclosure sale, 
where the evidence was not in the record and 
oral testimony might have been introduced which 
would entitle plaintiff to recover notwithstand- 
ing the alleged errors, those errors are harmless. 

[Ed. Note.— For other cases, see Appeal and 
Error. Cent Dig. §| 4029, 4030; Dec Dig. <8=> 
1026.] 

On Rehearing. 

4. Exceptions, Bill of «=»59(4)— Delay in 
Filing— Effect. 

While testimony which was presented to the 
judge or identified by him and ordered to be 
made part of the bill of exceptions before the 
expiration of the time for filing the bill, but in- 
advertently omitted therefrom, may be inserted 
by order nunc pro tunc,' or testimony, made part 
of the record, which was inadvertently omitted 
by the clerk, may be supplied by certiorari issu- 
ing out of the Supreme Court, appellant cannot 
have incorporated into the record, by an order 
in vacation after the expiration of the time for 
filing the bill of exceptions, oral testimony which 
was not reduced to writing or presented to the 
judge until after the expiration of such time. 

[Ed. Note.— For other cases, see Exceptions, 
Bill of, Cent. Dig. I 110; Dec. Dig. «=>59(4).] 

Appeal from Circuit Court, Crawford 
County; Jas. Cochran, Judge. 

Suit by J. F. McGehee, trustee, against J. 
E. London, to recover possession of lands. 
Judgment for plaintiff, and defendant ap- 
peals. Affirmed on original hearing and on 
rehearing. 

This was a suit by the appellee against 
appellant in ejectment to recover the pos- 
session of certain lands in Crawford county. 
The complaint set up that the lands had 
been foreclosed at a trustee's sale for the 



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payment of an Indebtedness due to the Alma 
Cash Store in the sum of $202.20, and that 
the appellee was the owner and entitled to 
possession under deed made in pursuance of 
such sale, and that appellant was in the ac- 
tual possession and refused to surrender the 
same to the appellee. The appellant an- 
swered, admitting that he executed a mort- 
gage upon the land, but denied that the 
mortgage was foreclosed or his title divest- 
ed, and denied all the other material allega- 
tions of the complaint The record shows 
that on December 8, 1916: 

"This cause was called for trial, and the plain- 
tiff appeared by his attorneys, Starbird & Star- 
bird, but the defendant was not present; but 
upon the plaintiff announcing ready for trial, 
and by consent of the plaintiff, the court, sitting 
as a jury, heard the cause, and the following 
testimony was introduced by plaintiff to prove 
his cause, which testimony is as follows." 

Then follows a recital, showing that the 
deed of trust and other papers were Intro- 
duced in evidence by the plaintiff. Then fol- 
lows this recital in the bill of exceptions: 

"This was all the evidence except the oral tes- 
timony of J. F. McGehee." 

The court found In favor of the appellee. 
Appellant filed a motion for a new trial, the 
court overruled the same, and appellant duly 
prosecutes this appeal. 

Wear & London, of Van Buren,' for appel- 
lant C A. Starbird, of Alma, for appellee. 

WOOD, J. (after stating the facts as 
above). Appellant contends that he was 
sick at the time the cause was called for 
trial In the circuit court, and was therefore 
necessarily absent; that the court erred, in 
his absence, in trying the cause, sitting as 
a Jury, without his express consent; that 
there was an issue of fact involved that en- 
titled him to a trial by a jury. 

Appellant further contends that there were 
two deeds of trust which were given in con- 
nection with each other and covered the 
same real estate, and that qnly one of these 
deeds of trust was introduced in evidence, 
and that both were necessary to the fore- 
closure proceeding; also that the trustee 
mating the sale was not the original trus- 
tee, and was not properly substituted. Ap- 
pellant also contends that the evidence was 
not sufficient to sustain the verdict and that 
on account of appellant's illness, as set up 
In his motion for a new trial, showing that 
It was impossible for him to attend, the court 
erred in trying the issues of fact sitting as 
a jury, and in other particulars mentioned, 
and asks that the judgment be reversed. The 
motion for new trial did not assign as er- 
ror the action of the court in sitting as a 
Jury. The bill of exceptions contains the 
recital that "this was all the testimony ex- 
cept the oral testimony of J. F. McGehee." 

HI The uniform holding of -this court Is 
that where the record shows that the cause 
was heard upon oral testimony, and that 
testimony has not been brought into the rec- 



ord by the bill of exceptions, this court will 
presume, on appeal, in favor of the finding 
and judgment of the trial court that every 
fact necessary to sustain the judgment was 
proved, where evidence adduced at the prop- 
er time would have 'justified the court's rul- 
ing. Railway v. -Amos, 64 Ark. 159, 15 S. 
W. 362; Tucker v. Hawkins, 72 Ark. 21, 22, 
77 S. W. 902; K. C. Ft. S. & M. Ky. Co. v. 
Joslin, 74 Ark. 661, 553, 86 S. W. 435; Hemp- 
stead County v. Phillips, 79 Ark. 263, 266, 
96 S. W. 133; Jonesboro, L. C. & E. By. Co. 
v. Chicago Portrait Co., 81 Ark. 327, 99 S. W. 
75. 

[2] Some of the errors of which appellant 
complains here were not preserved and the 
attention of the court called to them in the 
motion for a new trial. Such of these as 
were contained in the motion for a new trial, 
and that do not appear upon the face of the 
record, cannot be raised for the first time 
in this court 

[S] This court only reverses for errors ap- 
pearing in the proceedings of the trial court 
that are prejudicial to the rights of the 
appellant Oral testimony might have been 
introduced at the trial of the cause that 
would have shown that the judgment of the 
court notwithstanding the errors of which 
appellant complains, were correct and that 
these errors were therefore not prejudicial. 
For instance, oral testimony might have 
shown that the amounts due under both 
deeds of trust were past due and unpaid; 
that demand had been made for such pay- 
ment and refused, and that appellant had 
no defense to the foreclosure proceedings; 
that the trustee was properly substituted; 
and that the mortgages were properly fore- 
closed. If such proof had been made, appel- 
lee would have been entitled to a judgment 
notwithstanding the court may have erred 
in trying the cause sitting as a jury with- 
out the express consent of the appellant 

From the record presented to this court 
no prejudicial errors appear in the rulings 
and judgment of the trial court, and the 
same must be affirmed. 

* 

On Rehearing. 

[4] Appellant in his motion for a rehear- 
ing, calls our attention to what purports 
to be the testimony of J. F. McGehee, which 
appellant, by certiorari, has brought into 
the transcript, and which he claims is a 
part of the record of the proceedings in this 
cause. It appears that this testimony was 
taken orally, and was not copied or made a 
part of the record at or after the trial of 
the cause and before the time expired for 
the filing of the bill of exceptions. But after 
the time for the filing of the bill of excep- 
tions had expired, and after the bill of ex- 
ceptions had been signed by the trial judge 
and had been filed with the clerk, a state- 
ment of the testimony of J. F. McGehee was 
reduced to writing and presented to the 
trial judge, and he, In vacation, ordered 



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12 



191 SOUTHWESTERN REPORTER 



(Ark. 



the testimony to be made a part of the 
record. 

The testimony of J. F. McGehee, taken at 
the time of the trial, could not be brought In- 
to the bill of exceptions and made a part of 
the record In this way. If the testimony had 
been reduced to writing by appellant and had 
been presented to the trial Judge before the 
tune expired, or If it had been Identified by 
the presiding Judge and ordered filed and 
made a part of the bill of exceptions before 
the expiration of the time for the filing of 
the bill of exceptions, then if such testimony 
had been inadvertently omitted from the 
bill of exceptions, the circuit court could 
have corrected such omission and had the 
same supplied by nunc pro tunc entry. Or, If 
the testimony had been reduced to writing 
and filed with the clerk as a part of the 
bill of exceptions, and had been inadvertent- 
ly omitted by the clerk in making up his 
transcript, ' such evidence could have been 
supplied by certiorari Issuing out of this 
court. Such, however, was not the case with 
the testimony which appellant now asks us 
to consider as a part of the bill of exceptions. 
This testimony, as we have stated, was not 
reduced to writing and identified by the 
presiding Judge and filed and thus made a 
part of the bill of exceptions. Therefore any 
attempt to supply the same by an order of 
the Judge in vacation and after the time for 
the filing of the bill of exceptions had expir- 
ed could not have the effect of bringing such 
statement into the record by bill of excep- 
tions. A circuit Judge has no power In vaca- 
tion to add to or amend a bill of exceptions 
after the expiration of the time for the fil- 
ing of such bill of exceptions. See Stlnson 
v. Shafer, 58 Ark. 110, 23 S. W. 651; Madison 
County v. Maples, 103 Ark. 44, 145 S. W. 
887; Routh v. Thorpe, 103 Ark. 46, 145 S. 
W. 888. Therefore this court cannot treat 
the purported testimony of J. F. McGehee as 
a part of the bill of exceptions, and the mo- 
tion for rehearing is denied. 



RIDER v. STATE. (No. 63.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

Animals <8=>36 — Contagious Diseases — 
Criminal Pboskcutiow— Inpobmation. 
An information for violation of the regula- 
tions for cattle tick eradication, promulgated 
by the board of control of the agricultural sta- 
tion under Acts 1915, p. 338, which merely 
charged defendant with having refused to dip 
certain cattle, held sufficient without alleging re- 
fusal to bring cattle when prdered by inspector 
to a regular disinfecting station for the purpose 
of having them properly dipped. 

[Ed. Note.— For other cases, see Animals, 
Cent. Dig. H 95, 96; Dec. Dig. <S=»36.] 

Appeal from Circuit Court, Franklin Coun- 
ty ; Jas. Cochran, Judge. 

Polk Rider was convicted for violation of a 
rule of the board of control of the agricultur- 



al station concerning cattle tick eradication, 
and appeals. Affirmed. 

T. A. Pettlgrew, of Charleston, for appel- 
lant Wallace Davis, Atty. Gen., and Hamil- 
ton Moses, Asst Atty. Gen., for the State. 

McCULLOCH, C. J. This is a prosecution 
for alleged violation of a rule promulgated 
by the board of control of the agricultural 
station concerning cattle tick eradication, and 
the case Is ruled by the recent opinion of this 
court In Davis v. State, 190 S. W. 436, except 
as to the sufficiency of the information filed 
by the prosecuting attorney instituting the 
prosecution. 

It Is contended that the Information Is not 
sufficient because it merely charges the de- 
fendant with having refused to "dip certain 
cattle," without alleging specifically that he 
refused to comply with the regulation by 
bringing his cattle, when ordered by the in- 
spector, to "a regular disinfecting station for 
the purpose of having them properly dipped." 
We think that the language set forth in the 
information Is sufficient to put the defendant 
upon notice as to the specific offense with 
which he is charged. 

Affirmed. 



MATS v. BLAIR et ux. 
(Supreme Court of Arkansas. 



(No. 62.) 
Jan. 1, 1917.) 



Vendor and Pubohaseb «=»341(3)— Executo- 
bt Contract— Tender— Good Faith— Evi- 
dence. 

In an action to recover money paid under 
an executory contract for sale of land on the 
ground of vendor's failure to furnish marketable 
title, Supreme Court held that purchaser's com- 
plaint should be dismissed unless he elected to 
complete contract by tender of price, in which 
event vendor should have reasonable opportunity 
to make title marketable. Thereafter nothing 
was done for five months, when purchaser made 
formal tender of balance of price and offered to 
allow vendor 30 days in which to perfect title. 
Held, a finding was justified that purchaser's 
tender was not made in good faith but merely 
for the purpose, o'f securing advantageous posi- 
tion in controversy, and complaint was proper- 
ly dismissed, where purchaser declined offer of 
court to fix definite time in which vendor should 
make title marketable. 

[Ed. Note.— For other cases, see Vendor and 
Purchaser, Cent Dig. §§ 1012-1014; Dec. Dig. 
®=»341(3).] 

Smith, J., dissenting. 

Appeal from Searcy Chancery .Court; T. H. 
Humphreys, Chancellor. 

Action by Ed. Mays against George T. 
Blair and wife. Judgment of dismissal for 
defendants, and plaintiff appeals. Affirmed. 

Bratton & Bratton, of Little Rock, for ap- 
pellant S. W. Woods and A. T. Barr, both 
of Marshall, for appellees. 

McCULLOCH, O. J. Appellant and appel- 
lee entered Into a written contract for the 
sale and conveyance by the latter to the for- 
mer of 125 lots in the town of Leslie, Ark., 



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LUMBER. OO. v, J>YB 



13. 



for the agreed purchane price of $10^000, of 
which |2,000 was paid at the- time of the exe- 
cution of the contract and $1,000 was paid 
later. Defects appeared in the title which 
had to be perfected, and negotiations were 
finally broken off, and appellant instituted 
an action in the chancery court against ap- 
pellee to recover the sum paid under the con- 
tract, and alleged that appellee had failed 
to furnish a marketable title. The chancery 
court decreed in appellant's favor for the re- 
covery of the sum of $1,000 paid as afore- 
said, but refused to decree a recovery of the 
sum of $2,000 paid at the time of the execu- 
tion of the contract Both parties appealed 
to this court. 

We found, in considering the case, that the 
title of appellee was imperfect only as to a 
small Interest in some of the lots, and that 
appellant bad wrongfully broken off negotia- 
tions without giving appellee reasonable time 
within which to perfect the title, and we re- 
versed the decree on the cross-appeal of ap- 
pellee Blair, with directions to dismiss the 
appellant's complaint for want of equity un- 
less he elected to complete the contract "by 
tendering the purchase price, in which event 
appellee should be given a reasonable oppor- 
tunity to perfect the title so as to make it 
marketable." Mays v. Blair, 120 Ark. 69, 179 
S. W. 331. 

The case was decided by this court on July 
12, 1915, and a petition for rehearing was 
overruled on September 25, 1915, when the 
Judgment of this court became final, and the 
mandate was sent down to the lower court 
Nothing further appears to have occurred 
between the parties until February 15, 1916, 
when appellant called appellee into a bank- 
ing room In the town of Leslie, and In the 
presence of witnesses made what he claims 
to have been a legal tender of the balance 
of purchase price of the land and demanded 
a conveyance with an abstract showing a 
marketable title to the land. The conversa- 
tion between the parties was taken down by 
a stenographer, with whom arrangements had 
been previously made by appellant, and It ap- 
pears in full in the record in this case. It 
is evident that appellant was acting under 
the advice of his counsel and was preparing 
himself for a further controversy with appel- 
lee. He read to appellee a prepared written 
statement in which he recited the litigation 
between the parties, and the effect of the de- 
cision of this court, and containing the an- 
nouncement that he was ready to comply 
with the contract by paying the balance of 
the purchase price when a marketable title, 
as defined by the Supreme Court, was duly 
tendered, and he offered to allow appellee 
30 days within which to perfect the title. 
Appellee informed appellant in this conver- 
sation that he had been making efforts to 
secure quitclaim deeds from certain parties 
which would cure the defect in the title, and 
that be would, within a reasonable time, se- 



cure these deeds, and proposed to do so by 
the time that the chancery court convened at 
the next term. The question arose between 
the parties as to payment of interest, and ap- 
pellant said that he would pay Interest If 
the court decided that he was legally liable 
for the same. 

At the next term of court, the cause was 
heard upon oral testimony, and the court 
found that appellant had not made a prop- 
er tender to appellee of the balance of the 
purchase price, and also held that the time 
specified by the appellant for the completion 
of the title was unreasonable ; but the court 
offered to fix 60 days as a reasonable time 
within which appellee should perfect the ti- 
tle, which offer appellant refused, and the 
court dismissed the complaint for want of 
equity. 

We are of the- opinion that the court was 
justified in finding from the evidence that 
the alleged tender was not made in good 
faith, but that appellant was merely seek- 
ing an advantageous position to further pur- 
sue the controversy without attempting to 
carry out his contract. In fact, appellant 
was asked while on the witness stand if he 
really wanted the land, and he replied that 
he wanted to comply with his contract, 
which may be fairly interpreted to mean that 
he wanted to stay within the letter of his con- 
tract but was unwilling to say that he want- 
ed to buy the land. The court was therefore 
Justified in finding that not only there was a 
failure to make a legal tender of the money, 
technically speaking, and also that the pro- 
posal of appellant was not made In good 
faith, but merely for the purpose of placing 
himself in a position to pursue the controver- 
sy further, without being compelled to com- 
ply with his contract. The court offered to 
require the appellee to remedy the defects 
In the proportionately small Interests in the 
title within 60 days, which was a reasonable 
time, and, when appellant again broke off the 
negotiations by his refusal to accept those 
terms, the court properly dismissed his com- 
plaint for want of equity. 

The decree is therefore affirmed. 



SMITH, J., dissents, 
not participating. 



HUMPHREYS, J., 



BOTNTON LAND & LUMBER CO. v. DTE. 
(No. 70.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

1. Loos and Logging <g=>8(5) — Breach or 
Contract— Measure of Damages. 

In an action for the breach of a contract to 
cut and haul timber to the defendant's mill, the 
measure of damages is plaintiff's loss of profits. 

[Ed. Note.— For other cases, see Logs and 
Logging, Dec. Dig. <S=»8(5); Contracts, Cent. 
Dig. S 891.] 

2. Logs ano Logging ®=»8(5) — Breach of 
Contract— Measure ot Damages. 

In an action for the breach of a contract to 
cut and haul timber to the defendant's mill for 



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191 SOUTHWESTERN REPORTER 



(Ark. 



a stipulated price per thousand feet, as the cost 
of establishing slab roads was a part of the ex- 
pense to be borne by plaintiff in performing- the 
contract, it should have been deducted from his 
gross profits in order to arrive at his net profits, 
since plaintiff was not entitled to be put in a 
better position by reason of the breach than he 
would have been if he had been allowed to carry 
out the contract. 

{Ed. Note.— Fof other cases, see Logs and 
Logging, Dec. Dig. «=>8(5); Contracts, Cent. 
Dig. { 891.] 

3. Loos and Logging <S=8(5) — Evidence — 
Sufficiency. 

In an action for breach of a contract to cut 
and haul timber to defendant's mill, evidence 
held not to establish either an express or an 
implied independent contract to pay plaintiff for 
constructing slat) roads upon which to haul the 
timber. 

[Ed. Note.— For other cases, see Logs and Log- 
ging, Dec. Dig. <8=>8(5).] 

4. Appeal and Ebbob «=>1050(2)— Review- 
Prejudicial Ebbob. 

In an action for breach of a contract to cut 
and haul timber to defendant's mill, the admis- 
sion of evidence that plaintiff and his brother 
were summoned to appear before the grand jury, 
and that indictments had been returned against 
certain officers of the defendant for carrying 
concealed weapons, that their fines were paid by 
defendant, and that the managing officers of 
defendant became angry with plaintiff and his 
brother on this account, and stated that they did 
not want them to work for defendant any lon- 
ger, as they were causing trouble, was prejudi- 
cial error, since the motive of defendant in re- 
fusing to allow plaintiff to carry out his contract 
was immaterial. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. § 4154; Dec. Dig. <$=>1050(2).] 

Appeal from Circuit Court, Mississippi 
County; W. J. Driver, Judge. 

Action by Tom Dye against the Boyoton 
Land ft Lumber Company. Judgment for 
plaintiff, and defendant appeals. Reversed 
and remanded for new trial. 

C. A. Cunningham, of Blytheville, and 
Jones, Hocfcer, Sullivan ft Angert, of St 
Louis, Mo., for appellant O. O. Patterson, 
of Clarksville, and Sellers ft Sellers, of Mor- 
rllltou, for appellee. 

HART, J. Appellee entered into a con- 
tract with appellant whereby he was to cut 
and haul timber to appellant's mill , from a 
certain tract of land near it for a stipulated 
price, and this action is Instituted by him to 
recover damages for an alleged breach of 
the contract by appellant The contract was 
made in March, 1914, and under it appellee 
was to receive the sum of $2.75 per thousand 
feet for the timber cut and hauled by him 
from the land to appellant's railroad tracks, 
where the haul was a half of a mile or less 
and $3.25 per thousand where It exceeded a 
half of a mile. Appellee worked under this 
contract until some time in April or May, 
when the mill was abut down. He com- 
menced work under it again In September, 
and continued to work until about December. 
Appellee stated that Information reached 



him that the company would not let him 
work under the contract any longer, and he 
asked the general manager about it; that the 
general manager referred him to the woods 
foreman; that he was unable to And the 
woods foreman, who had gone to St Louis, 
and that finally, after gping from one officer 
to another, he was told that he could not do 
any more work under the contract; that no 
reason was given for stopping him. Appel- 
lee then stated what profit he had been mak- 
ing while at work under the contract He 
also stated that he had expended a certain 
amount of money in building slab roads for 
the purpose of hauling timber. According 
to the testimony adduced by appellant it 
did not stop appellee from working under 
the contract but its officers stated that they 
were anxious for appellee to continue haul- 
ing the timber. The officers of the company 
admitted that appellee had leased certain 
farm lands from appellant and that they 
had given him notice to vacate these lands 
when his lease terminated, but they said 
that it had no connection whatever with the 
timber contract. Testimony was also ad- 
duced by appellant, tending to show that it 
furnished the slabs at the request of ap- 
pellee to build the road, and hauled them 
to the point on its tracks from which the 
slab roads were to be constructed; that they 
did this whenever requested by persons with 
whom the company had made a contract for 
hauling timber, but that it was understood 
that the company was not to be charged for 
the labor performed In constructing the slab 
roads. Persons engaged In hauling timber 
for appellee under his contract testified that 
they helped build the slab roads, and that it 
was done for the benefit of appellee, and that 
they made no charge for their services. The 
jury returned a verdict in favor of appellee 
and the case Is here on appeal. 

[1] It is first contended by counsel for ap- 
pellant that loss of profits is not the measure 
of damages for breach of contracts like the 
one under consideration. We do not agree 
with counsel In this contention. Logging and 
lumbering, in their various phases, consti- 
tute a business which has been carried on 
so extensively that the costs and profits of 
any particular enterprise are no longer a 
matter of conjecture or speculation, but can 
be estimated with such certainty as to war- 
rant the use of profits lost as a measure of 
damages In actions for breach of such con- 
tracts. See case note to 53 L. R A. at page 
52 ; Alf Bennett Lumber Co. v. Walnut Lake 
Cypress Co., 105 Ark. 421, 151 S. W. 275; 
Ford Hardwood Lbr. Co. v. Clement 97 Ark. 
522, 135 S. W. 343; Beekman Lumber Co. v. 
Kittrell, 80 Ark. 288, 96 S. W. 988; Grayling 
Lumber Co. v. Hemingway, 187 S. W. 327. 

[2] It is also contended that the court er- 
red in allowing to be submitted to the jury 
the question of whether or not appellant was. 



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Arfc> CHICAGO, B. I. A P. 



BY. CO. v. ALLISON 



16 



liable to appellee for the amount expended by 
him for the construction of the slab roads. 
In this contention we think that counsel are 
correct In estimating the damages, If any, 
which appellee was entitled to recover, the 
cost of constructing the slab roads was a 
part of the expense to be borne by appellee 
In performing his contract, and should have 
been deducted from his gross profits in or- 
der to arrive at his net profits. 

Appellee was not entitled to be put in a 
better position by reason of the breach than 
he would have been if appellant had allowed 
him to carry out the contract Magnolia 
Metal Company v. Gale, 189 Mass. 124, 75 
N. E. 218; Sedgwick on Damages (Oth .Ed.) 
S 607. 

[S] But it is contended by counsel for ap- 
pellee that appellant in an independent con- 
tract agreed to pay him for building the 
slab roads. We do not think so. Appellee's 
own testimony does not go to the extent of 
establishing the fact that appellant either 
by an express or an implied contract, agreed 
to pay him for constructing the slab roads. 
His own testimony establishes no more than 
the fact that appellant permitted him to con- 
struct the slab roads and hauled him the 
slabs from its mill over its log road to the 
point where he commenced to build the slab 
roads. The other testimony shows that this 
was done for the benefit of appellee, and 
was done pursuant to a custom of appellant 
with all Its haulers, and that It was under- 
stood In such cases that the roads should be 
constructed without any cost to appellant 
except to furnish the slabs. Hence the court 
erred in submitting to the Jury the question 
of appellant's liability to appellee for the 
construction of the slab roads, but under the 
evidence should have told the Jury as a mat- 
ter of law that appellant was not liable 
therefor. 

[4] Over the objection of appellant appel- 
lee was permitted to show that he and his 
brother were summoned to appear before the 
grand Jury, and that indictments were re- 
turned against certain officers of appellant 
for carrying concealed weapons; that their 
fines were paid by appellant and that the 
managing officers of appellant became "angry 
on this account and so expressed them- 
selves to certain persons, and stated, fur- 
ther, that appellee and his brother were 
causing trouble to appellant and that they 
did not want them to work for appellant any 
longer. Error calling for a reversal of the 
Judgment is assigned because of the act of 
the court in admitting this testimony to go. 
before the Jury. We think the action of the 
court in. this respect was prejudicial to the: 
rights of appellant and fox.. that reason the: 
Judgment should be reversed.. The rule is 
well settled that in actions for breach of a 
contract the. losses sustained do not usually 
Involve any other than pecuniary elements,, 



and for that reason' the motive which caus- 
es the breach of the. contract cannot increase 
the injury. Hence the right of recovery lg 
wholly Independent of the motive which in- 
duced the act or omission which constitutes 
the cause of action. No foundation for ex- 
emplary damages was shown. The intent 
and motive of appellant or whether Its offi- 
cers acted In good faith or not was wholly 
Immaterial. 

The sole question was whether or not ap- 
pellee's rights were invaded, and, if so, the 
amount of damages suffered by him. The 
particular reasons or motives which appel- 
lant or Its officers may have had in rema- 
in g to permit appellee to continue to work 
under his contract were not in issue. Jen- 
kins v. Kirtley, 70 Kan. 801, 79 Pac. 671; 
Moyer v. Gordon, 113 Ind. 282, 14 N. E. 476; 
Grand Tower Go. v. Phillips, 90 U. 8. (28 
WaU.) 471, 23 L. Ed. 71 ; Duche v. Wilson, 37 
Hun (N. Y.) 519. 

For the errors Indicated In the opinion, 
the Judgment will be reversed, and the cause 
remanded for a new trial. 



0HI0AGO, B. I. * P. BY. CO. v. ALLISON 
et al. (No. 61.) 

(Supreme Court of Arkansas. Jan. L 1917.) 

Cashiers €=277(6) — Excessive Amodwt ■•>- 
Cabbiebs Requiring White , Passengers 
to Bids in Negbo Cabs. 
An award of $250 to each of two women 
against a carrier for requiring them to ride in a 
negro coach with negroes held excessive and re- 
duced to $50 each, where the evidence showed 
that they rode only three or four miles, that 
their escorts were near by, that the conductor's 
wife was in a seat across the aisle from them, 
and that they were invited Into the negro coach 
because the other compartment of the car was 
crowded with men, many of whom were smoking. 

[Ed. Note.— For other cases, see Carriers, 
Cent. Dig. § 1084 ; Dec. Dig. <8=»277(6).] 

Appeal from Circuit Court, Hot Spring 
County; W. H. Evans, Judge. 

Actions by Mrs. Lennie E. Allison and by 
Miss Ida Trussell against the. Chicago, Bock 
Island & Pacific Railway Company. Judg- 
ments for plaintiffs, and defendant appeals. 
Modified and affirmed. 

Thou. S. Buzbee and Geo. B. Pugh, both of 
Little Beck, for appellant M. S. Cobb, of 
Hot Springs, for appellees. 

McCtJLLOCH, a J. The plaintiffs, Mrs. 
Lennie Hi Allison and Miss Ida Truseeir, 
white parsons. Instituted separate actions 
against the Chicago, Bock Island & Pacific 
Railway Company to recover damages on 
account of having been required, as alleged, 
to ride in a negro coach with negroes. The 
plaintiffs were sisters, and Miss Trussell 
■died, during, the pendency of the actions. The 
action instituted by Miss Trussell was re- 
vived in the name of the administrator of 



«rs>r»r itku euii mc Him* feptefeaAKWMirilCBBBUa : aUXagrr KamlMna DisaaU and index** 

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IK. SOUIKWESXEBN BEPOKTEK 



(Ark. 



her estate, and the two actions were consol- 
idated and tried together. The case has been 
here on a former appeal, and the judgments 
against the defendant were reversed. 120 
Ark. 54, 178 8. W. 401. On the second trial 
the Jury returned a verdict assessing dam- 
ages in the sum of $260 in favor of each of 
the plaintiffs, and the only question raised on 
this appeal concerns the excessiveness of the 
award of damages. 

The incident out of which the claim for 
damages arose took place on March 18, 1013, 
and Mrs. Allison was then about 18 years of 
age and unmarried. Her sister, Miss Trus- 
sell, was about 14 years old. They boarded 
the train at Price for the purpose of riding 
to Lawrence, another station three or four 
miles distant, and were in company with 
their brother, a lad about 12 years old, and a 
Mr. Wyatt and the tatter's wife. Mrs. Wyatt 
was chaperoning the party, as Mrs. Allison 
states In her testimony. There was only one 
coach, divided Into two compartments, one 
for white passengers and the other for color- 
ed passengers. The compartment for white 
passengers was crowded with men, many of 
whom were smoking, and the conductor di- 
rected the three ladies to go into the negro 
compartment, telling them that his wife was 
riding in there, and that it would be more 
comfortable for them on account of the 
crowded condition of the other compartment 
and the fact that it was filled with tobacco 
smoke. Mr. Wyatt and the boy were given 
seats in the white compartment with the 
men. 

There is a conflict in the testimony as to 
the precise time when the conductor made 
this explanation to the ladies of his reason 
for putting them In the negro compartment 
The conductor testified that he made that 
explanation to the ladies when he invited 
them into the negro compartment, but Mrs. 
Allison testified that the explanation was 
made after they had taken seats in there and 
when they protested against remaining in 
there. She states that the conductor told 
her that his wife was In that compartment, 
and pointed to a veiled lady sitting across 
the aisle, but that she (witness) could not 
discover whether the woman was white or 
colored. It is undisputed that the white com- 
partment was crowded with men who were 
smoking, and that the conductor's wife was 
in the negro compartment, sitting across the 
aisle from the plaintiff. Mrs. Allison gives 
no reason Dor doubting the truth of the con- 
ductor's statement that the lady across the 
aisle was his wife, and it la not contended 
that the conductor treated the ladles other- 
wise than with the utmost courtesy, unless it 
can be said to have been a discourtesy to 
politely invite them into the colored coach 
where his wife waa seated. The conductor 
admitted that his act was In violation of the 
rales of the company about separating white 



and colored passengers, but stated that he 
did what he thought was for the comfort of 
the ladies, as be bad done for his wife. 

We are of the opinion that the jury's 
award of damages was clearly excessive. 
Mrs. Allison states in her testimony that she 
rode unwillingly in the negro compartment, 
and was frightened and nervous and felt 
humiliated on account of having to ride with 
negroes, but with her brother and the hus- 
band of Mrs. Wyatt, the chaperone, sitting 
near by, and the conductor's wife sitting 
across the aisle, her fears appear to us to 
have been groundless. They only rode three 
or four miles, perhaps covering a period of 
10 or 16 minutes, and the discomfort and 
sense of humiliation could not have been very 
considerable under those circumstances. We 
appreciate the fact that it was distasteful 
to the ladies to be thus forced by circum- 
stances to ride in the compartment set apart 
for negro passengers, but when it comes to 
measuring the discomfort in an award of 
damages we think that the Injury sustained 
was not very considerable. It is difficult to 
find a rule whereby such damages can be 
measured, but we think that $50 Is a suffi- 
cient sum for each of the ladles to recover 
on account of this violation of their rights. 

The amount to be recovered by each of the 
plaintiffs is reduced to that sum, and the 
Judgments are accordingly modified. 



B.EIFF et al. v. REDFIELD SCHOOL 
BOARD et al. (No. 40.) 
(Supreme Court of Arkansas. Dec. 18, 1016.) 

1. Schools and School Districts e=>81(2) 
—Contractors— Bonds— Actions Against 
Surety— Parties Entitled to Sue. 

In the absence of statute, no action can be 
maintained by a materialman on a public con- 
tractor's bond given to the owner of property 
for labor and material furnished, unless there 
la a provision in the bond promising to pay 
the materialmen. 

[Ed. Note.— For other cases, see Schools and 
School Districts, Cent. Dig. §{ 196, 196; Dec. 
Dig. <S=»81(2)J 

2. Schools and School Districts «=>81(2)— 
Contractor's Bond — Actions Aoainst 
Surety — Persons Entitled to Sue— Stat- 
ute.' 

An action may be maintained by a material- 
man for material supplied in the fulfillment of 
the contract on a public contractor's bond exe- 
cuted pursuant to a statute which provides 
that it shall inure to the benefit of those fur- 
nishing labor and materials. 

[Ed. Note.— For other cases, see Schools and 
School Districts, Cent. Dig. H 105, 196; Dec. 
Dig. <8=»81(2).] 

3. Schools and School Districts <*o81(2)— 
Contractors — Statutory Bond — Condi- 
tion. 

A bond given by a contractor for a public 
school building and his sureties conditioned that 
they would pay all labor and materials for the 
building, filed in the office of the clerk of the cir- 
cuit court, and approved by him, was a bond 
executed pursuant to Acts 1911, p. 404, I 2, 
requiring one contracting with a public officer 



Ste&For oUur 



ArkJ 



BJHFF v. UJDUKiULD SCHOOL BOARD 



17 



to erect a public building to enter into a bone 
approved by the clerk of the circuit court con- 
ditioned that the contractor shall pay the in- 
debtedness for labor and material furnished in 
die construction of the public building. 

[Sd. Note.— For other case*, see Schools and 
School Districts, Cent Dig. U 196, 196; Dec. 
Dig. <8=81(2)J 

4. Schools and School Districts «j=>81(2)— 
contractor's bond— (directors— "public 

O FTTTClSBfl ■ * * 

The board of school directors are "public 
officers" within Acta 1911, p. 464, | 2, provid- 
ing for contractor's bond for those entering into 
contracts with public officers for the erection 
or improvement of public buildings. 

[Ed. Nota— For other cases, see Schools and 
School Districts, Cent. Dig. ii 195, 196; Dec. 
Dig. «=>81(2). 

For other definitions, see Words and Phrases, 
Second Series, Public Officer.] 

5. Schools and School Distbiots <s=>81(2)— 
Contractor's Bond — Extent of Liability. 

Acts 1911, p. 464, f 2, requiring contractors 
for public buildings to give bond to pay the 
indebtedness for labor and material furnished 
in the construction of public buildings, creates 
a liability on the bond only for materials ac- 
tually used in the construction of the building. 

[Ed. Note.— For other cases, see Schools and 
School Districts, Cent. Dig. ft 195, 196; Dec. 
Dig. «=>81<2)J 

6. Tboveb and Conversion <3=>10 — Contrac- 
tob's Bond — Liability of Surety — CON- 
VERSION. 

Where the surety on a public contractor's 
bond directed the safe of materials delivered to 
the building but not used in its construction, 
such sale was a conversion which rendered the 
surety liable to the materialman. 

[Ed. Note.— For other cases, see Trover and 
Conversion, Cent Dig. §§ 84-94; Dec. Dig. €=> 
10.]. 

7. Schools and Schools Districts «=»81(2) 
— Contractor's Bond— Liability of Sure- 
ty— Riqht of Materialman. 

The surety on the bond of a contractor for a 
schoolbouse given under Acts 1911, p. 464, S 2, 
is liable to a materialman for the price of ma- 
terials actually used in the building, though the 
directors refused to permit the surety to com- 
plete the building and expended more than 
was necessary in completing it 

[Ed. Note.— For other cases, see Schools and 
School Districts, Cent. Dig. ft 195, 196; Dec. 
Dig. <a=>81<2).] 

Appeal from Pulaski Chancery Court ; Jno. 
E. Martineau, Chancellor. 

Action by the Redfleld School Board and 
another against H. F. Beiff and others. De- 
cree for the plaintiffs, and defendants appeal. 
Affirmed. 

Carmichael, Brooks, Powers ft Rector., of 
Little Rock, for appellants. Mehaffy, Reld 
4k Mehaffy, of Little Bock, for appellees. 

HART, J. On February 19, 1915, the board 
at directors of Redfleld school district and 
the dark Pressed Brick Company of Mal- 
vern, Ark., instituted this action in the chan- 
cery court against the jEtna Accident ft Lia- 
bility Company, J. W. Sanders, and U. F. 
Relff, to recover $527.56 and the accrued in- 
terest, alleged to be the balance due for 85,- 
000 bricks that were used in the construction 



of a schoolbouse by said school board. The 
material facts are as follows: 

On the 27th day of June, 1914, the Redfleld 
school board of Redfleld, Ark, entered into a 
contract in writing with S. A. Sanders to 
erect a school building for the district for the 
consideration of $6,100 to be paid him by the 
district The contract contained plans and 
specifications as to the manner of the per- 
formance of the work ; but inasmuch as none 
of its provisions, except article 5, have any 
bearing en the issues raised by the appeal, we 
need only refer to that article. 

Article 6 provided, in substance, that 
should the contractor at any time fail in any 
respect to prosecute the work with diligence 
or fail in the performance of any of the 
agreements of the contract, upon such neglect 
or failure being certified by the architect, the 
owner shall have the right after three days' 
written notice given, to terminate the employ- 
ment of the contractor and take possession of 
the premises for the purpose of completing 
the work and may employ any other persons 
to finish the work and provide the materials 
therefor. Sanders entered into a bond in the 
sum of $12,500 with J. W. Sanders, H. F. 
Relff, and the -SStna Accident ft Liability 
Company as his sureties, payable to the 
Redfleld school board, for the faithful per- 
formance of the contract One of the condi- 
tions of the bond was that S. A. Sanders 
should faithfully and promptly perform and 
keep all the conditions and agreements con- 
tained In the contract and should pay for all 
labor and materials for same. 

S. A. Sanders, the contractor, died Septem- 
ber 12, 1914, before the schoolhouse was fin- 
ished. The work on the building ceased after 
his death, and the school board gave written 
notice to his sureties of that fact and noti- 
fied them that within three days from that 
date the board would take possession of the 
building and complete It according to the 
terms of Its contract with Sanders. At the 
expiration of three days, the board took pos- 
session of the building and completed it ac- 
cording to the terms of the contract It was 
proved that the Clark Pressed Brick Compa- 
ny of Malvern, Ark., had shipped to the con- 
tractor 85,000 brick to be used in the con- 
struction of the schoolhouse, and that all of 
these bricks went into the construction of the 
building except about 11,000; that of these, 
4,000 were used in another schoolhouse, and 
7,000 were sold for $42 at the instance of the 
agent of the -SStna Accident ft Liability Com- 
pany ; that there was $527.56 and the accrued 
Interest due the brick company. 

The chancellor found that all the bricks 
furnished went into the building except 11,- 
000, and that there was due the Clark Press- 
ed Brick Company $527.56 with $46.44 inter- 
est ; that the -Etna Accident ft Liability Com- 
pany is liable for 7,000 of the brick which 
were sold by reason of having authorized and 



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18 



191 SOUTHWESTERN REPORTER 



(Ark. 



directed the sale of said brick ; but that as to 
the 4,000 brick which were not sold, and 
which were not used In the construction of 
the building, neither of the defendants were 
liable. A decree was entered in accordance 
with the findings of the chancellor, and the 
case Is here on appeal. 

The defendant Relff was engaged In the 
lumber business and furnished lumber to the 
contractor to be used in the construction of 
the schoolhouse In question, and procured the 
JEtaa. Accident ft Liability Company to sign 
the bond, and agreed to indemnify It from all 
losses thereunder. He signed the bond as 
surety because he was Interested in the con- 
tract to the extent that he was furnishing the 
contractor the material that went Into the 
schoolhouse. 

The correctness of the decision of the chan- 
cellor holding the sureties liable depends 
upon whether or not the bond was executed 
pursuant to Act 446 of the Acts of 1911 and 
the construction to be given thereto. See 
General Acts of 1911, p. 462. Section 2 of 
the act reads as follows: 

"Sec. 2. Pubtio Offioen.— Whenever any public 
officer shall, under the laws of this state, enter 
into a contract in any sum exceeding one hun- 
dred dollars, with any person or persons, for 
the purpose of making any public improve- 
ments, or constructing any public building, or 
making any repairs on the same, such officer 
shall take from the party contracted -with a bond 
with good and sufficient sureties to the state 
of Arkansas, in a sum not less than doable 
the sum total of the contract whose qualifica- 
tions shall be verified, and such sureties shall 
be approved by the clerk of the circuit court 
in the county in which the property is situated, 
conditioned that such contractor, or contrac- 
tors shall pay all indebtedness for labor and 
material furnished in the construction of said 
public building, or in making said public im- 
provements." 

[1] In the absence of a statute, the right 
to sue on a public contractor's bond given to 
the owner of the property for labor and ma- 
terial furnished is dependent entirely on the 
terms of the bond. Without some provision 
promising to pay the laborers and material- 
men, an action cannot be maintained. This 
Is the effect of our decision in Eureka Stone 
Co. v. First Christian Church, 86 Ark. 212, 
110 S. W. 1042 and RussellviUe Water ft 
Light Co. v. Sauerman, 109 Ark. 601, 161 S. 
W. 502. 

[2] On the other hand, where a bond Is 
executed pursuant to the statute providing 
that a contractor's bond given thereunder 
for the faithful performance of public work 
shall inure to the benefit of those furnish- 
ing labor and materials, it is well settled that 
an action may be maintained thereon by one 
of such persons to recover for services ren- 
dered or material supplied In the fulfillment 
of the contract. Case note to Ann. Cas. 
1916A, at page 761, and many cases from 
quite a number of states, are cited. In such 
cases the purposes contemplated by the leg- 
islative requirement, as to the bond to be 
given, are not merely to secure the public 



In respect to the accomplishment of the work 
contracted for, but it is also Intended to se- 
cure or protect those doing labor or supply- 
ing materials for the contractors, even though 
there may be no responsibility on the part 
of the public agency to them. 

[3] It Is contended by counsel for the de- 
fendants that the bond In question was not 
executed pursuant to the statute above quot- 
ed, but we cannot agree with counsel in this 
contention. It will be noted that the statute 
requires that the bond be "conditioned that 
such contractor, or contractors shall pay all 
indebtedness for labor and material furnish- 
ed in the construction of said public build- 
ing, or In making said public improvements.'' 
One of the conditions of the bond is that 
"they (referring to principal and sureties) 
will pay for all labor and materials for the 
building." The undertaking of the bond fol- 
lows the statute, and we are clearly of the 
opinion that it was the intention of the par- 
ties to execute a bond in compliance with the 
terms of the statute. The bond was filed In 
the office of the clerk of the circuit court 
in the county where the schoolhouse was to 
be erected and was approved by him. 

[4] It is also insisted that the board of 
school directors are not public officers within 
the meaning of the statute ; but in the case 
of A. H. Andrews Co. v. Delight Special 
School District, 95 Ark. 26. 128 S. W. 361, It 
was held that school directors are public 
officers, and that the rule respecting their 
powers are the same as those that are ap- 
plicable to the powers of public officers gen- 
erally. That Is to say, that in addition to 
the powers given by the statute to a board 
of officers It has by implication such addi- 
tional powers as are necessary for the due 
and efficient exercise of the powers expressly 
granted or which may be fairly Implied from 
the statute granting the express powers. 

This court, in Blanchard v. Burns, 110 
Ark. 515, 162 S. W. 63, 49 L. R. A. (N. S.) 
1199, recognized that school directors were 
public officers within the meaning of the 
statute in question. There It was held that 
the directors of a school district are not In- 
dividually liable to a person furnishing build- 
ing material to a contractor who was build- 
ing a schoolhouse because of their failure to 
require a bond of the contractor as provided 
in Act 446, Public Acts of 1911, p. 463. 

It is Insisted that the bond was not ex- 
ecuted under this act, because the school 
district, and not the state, as required by the 
act, la named as the obligee in the bond. 
We do not agree with counsel in this con- 
tention. In State v. Wood, 51 Ark. 205, 10 
S. W. 624, the court held that the bond of a 
county treasurer, by the terms of which he 
and his sureties bind themselves that lie 
shall truthfully account for and pay over all 
moneys which may come to his hands by vir- 
tue of his office, is valid, although it names 
no obligee; and that, .under our statute, the 



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RSIFP v. RED FIELD SCHOOL BOARD 



19- 



state may bring an action on such bond for 
the use of the county to replace money never 
legally drawn from the treasury and for the 
amount of which the treasurer Is a defaulter. 
This case was cited in Ihrig v. Scott, 5 
Wash. 684, 32 Pac. 466, by the Supreme Court 
of the state of Washington, where it held 
that a contractor's bond given to the direc- 
tors of a school district, under a statute pro- 
viding that when public buildings are erected 
the contractors shall give bond, is not void 
In naming the obligee, because the statutory 
form is not followed. The court said: 

"That a mistake in the naming 1 of the obligee 
is not a fatal defect in a bond which is executed, 
pursuant to the requirements of a statute, in 
the interest of the public, when, notwithstand- 
ing such error, it clearly appears from the bond 
taken as a whole that it wag intended to be such 
a one as is required by the statute, is fully es- 
tablished by the authorities. See State v. 
Wood, 51 Ark. 206. 10 S. W. 624 : Bay County 
v. Brock, 44 Mich. 45, 6 N. W. 101. The simple 
fact, then, of the want of the proper obligee in 
this bond, is not fatal to it, if, from its terms, 
the object for which it is executed appears." 

In Bay County v. Brock, Judge Cooley said 
in substance that, while the statute in such 
cases ought to be obeyed literally, yet that, 
in so far as it names the nominal obligee 
in the bond, it is to be regarded as a direc- 
tory provision merely ; that the obligee is not 
named because of any interest in the condi- 
tion, but merely that there may be a promisee 
and a party in whose name to bring suit. As 
said by Judge CockriU in State v. Wood, 
supra, the reason is stronger for the en- 
forcement of the rule since the adoption of 
the Code. An action in such cases might be 
prosecuted by the state, as a trustee of an 
express trust, or by the real party in inter- 
est ; that is, by the person entitled to receive 
the money, who in this Instance Is the materi- 
alman. See, also, Huffman v. Koppelkom, 
8 Neb. 347, 1 N. W. 243; Crook County v. 
Bushnell, 15 Or. 169, 13 Pac. 886. 

rs] Again, it is contended by counsel for 
the defendants that the sureties on the bond 
are not liable for material that did not go 
into the construction of the building. In con- 
struing section 4970 of Elrby's Digest, giving 
materialmen a lien for materials furnished 
for any building by virtue of a contract with 
the owner, the court held that the materials 
furnished for a building must be actually 
used in it before a lien will be acquired. 
Central Lumber Co. v. Braddock Land & 
Granite Co, 84 Ark. 560, 105 S. W. 583, 13 
Ann. Cas. 11. This construction resulted 
from the language of the statute giving the 
lien. So we think, from the language of the 
statute In the present case, that It is only in- 
tended to make the bond liable for materials 
that were actually used in the construction 
of the bnlldlng. 

[I] In the Instant case, the secretary of 
the school board testified that, of the 85,000 
brick furnished, all but 11,000 were used in 
the construction of the building, and the 
court held that the sureties were only liable 



under the bond for the amount of the brick 
used in erecting the schooihouse. Of the re- 
maining 11,000 brick shipped to the contrac- 
tor, but not used In erecting the building, 
4,000 of them were used in another school- 
house by the directors, and the court properly 
held that the sureties on the bond were not 
liable for the value of these brick. The JEtna 
Accident A Liability Company directed that 
the other 7,000 brick should be sold, and the 
court held It to be liable therefor, not because 
of its being surety on the bond, but because 
it took charge of the brick and authorized 
and directed their sale. This amounted to a 
conversion of the brick, and the court prop- 
erly held the ^Etna Company liable therefor. 
The defendant Reiff was not properly held 
liable for the sale of these brick because he 
did not authorize or direct the sale thereof. 

[7] Finally, it is insisted that there Is no 
liability on the bond under the facts. Coun- 
sel claim that the evidence shows that the 
school board refused to allow the bondsmen 
to finish the job on the death of Mr. Sanders, 
and that they spent more money than was 
necessary to complete the school building ac- 
cording to the contract 

We do not deem it necessary to express an 
opinion as to whether or not the facts are as 
contended by counsel, as we prefer to rest 
our decision npon the Issues squarely pre- 
sented by the pleadings. This bond was giv- 
en pursuant to a statute for the protection 
of persons furnishing materials and labor 
for the construction of public buildings. The 
construction placed by the plaintiffs upon 
the condition of the bond Is not correct. It 
means that the contractor will pay his labor- 
ers and materialmen as he has agreed with 
them, and this Is what the act intends. The 
contractor's bond provided by the statute is 
for their use and security, and the sureties 
are presumed to know the statute, the terms 
of their undertaking, the character and re- 
sponsibility of the contractor, and his ability 
to carry out his contract. In short, the sure- 
ties are presumed to have understood the 
nature and extent of their principal's obliga- 
tions when they signed the bond. The stat- 
ute in question Is a part of their contract, 
and they must be presumed to have known 
that the covenant in the bond was made for 
the benefit of the laborers and materialmen. 
The evidence shows that the decree was only 
for the materials that went Into the building. 
Thus It becomes immaterial to decide whether 
or not the district paid more money than was 
necessary to complete the school building ac- 
cording to the contract or refused to allow 
the bondsmen to complete the building. It is 
true the school district was made a party 
to this action, but it was only a nominal par- 
ty. The only question at Issue was whether 
or not the bondsmen were liable to the brick 
company for materials furnished and used 
In the construction of the building. 

It follows that the decree must be affirmed. 



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191 SOUTHWESTERN REPORTER 



(Art 



MHI/TON v. MEJI/TON. (No. 06.) 
(Supreme Court of Arkansas. Jan. 1, 1917.) 

1. Homestead «=s>182(l)—ABANDONMmtf— In- 
tent. 

Abandonment of a homestead involves an 
intention to abandon it, either at the time of 
removal therefrom or thereafter. 

[Ed. Note.— For other cases, see Homestead, 
Cent^Dig. §f 315, 318, 819; Dec Dig. «=> 

2. Homestead <S=>181(1)— Abandonment by 
Surviving Wife — Burden of Proof. 

A party, claiming that a widow abandoned 
her homestead, has the burden of proof. 

[Ed. Note.— For other cases, see Homestead, 
Cent Dig. i 352; Dec. Dig. «=>181(1).] 

3. Homestead «j=>181(3)— Abandonment bt 
Surviving Wife — S uw ic uc nct of Evi- 
dence. 

Evidence that a widow had not lived on land 
for some seven years, and had rented it, is not 
inconsistent with her claim of homestead, and 
does not necessitate a reversal of the trial 
court's finding of no abandonment.. 

[Ed. Note.— For other cases, see Homestead, 
Cent Dig. | 353; Dec. Dig. «=>181<3).] 

4. Husband and Wife ®=»49%(8)— Gifts— 
Sufficiency of Evidence. 

Evidence that a husband, during his last 
illness and also some eight years previous, at- 
tempted to verbally give his wife certain realty, 
which she improved, but with no visible change 
in the character or her possession before and 
after the attempted gifts, supports a finding that 
there was no valid gift, either inter vivos or 
causa mortis. 

[Ed. Note.— For other cases, see Husband and 
Wife, Cent Dig. | 254 ; Dec. Dig. «=»49%(8).] 

Appeal from Columbia Chancery Court; R. 
ti. Searcy, Special Chancellor. 

Action by Eliza Melton against Lula Hicks 
Melton. Decree giving plaintiff partial re- 
lief, and she appeals. Affirmed. 

This salt was Instituted by the appellant 
against the appellee at law to recover posses- 
sion of lots 25 and 26 In the town of Magno- 
lia. The appellant set up title by virtue of 
an Inheritance from her father, James R. 
Melton, deceased. The appellee in her an- 
swer denied the allegations of the complaint, 
and set up that she was the widow of Seeb 
Melton, and that her husband was the son 
of James R. Melton, and that James R. Mel- 
ton during his lifetime conveyed the property 
to Seeb Melton; that her husband gave the 
property to her. She also set up that she 
and her husband had occupied the property 
as a homestead, and that they were so oc- 
cupying the same at the time of her hus- 
band's death. She asked in the prayer of her 
answer that, If it was determined that she 
was not the owner, she be decreed a home- 
stead in the property. She asked that the 
cause be transferred to equity, which was 
done. 

After the cause was transferred to equity 
the 1 appellant filed an amended and substitut- 
ed complaint, alleging title to the property 
the same as In her original complaint, and 
asked that her title to same be quieted and 
confirmed as against the appellee, and also 



asked that the dower interest of the appellee 
in the property be allotted, and after allot- 
ment of the dower interest that appellant be 
decreed possession of that portion of the 
property remaining after such allotment of 
dower to appellee. Appellee filed an amend- 
ment to her answer and cross-complaint sub- 
stantially the same as set np in the original, 
but in this she did not claim any homestead 
In the property. 

The facts showed that J. R. Melton was 
the owner of the land in controversy at the 
time of his death ; that appellant Eliza Mel- 
ton, was his daughter, and W. S. Melton was 
his son. It appears from the testimony that 
on the 14th of January, 1893, James R. Mel- 
ton purchased the land in controversy from 
H. O. Smith, receiving a warranty deed. Aft- 
er this purchase from Smith, W. S. Melton, 
the son of J. R. Melton, and husband of the 
appellee, went into possession of the property 
and occupied the same as his homestead un- 
til his death. J. R. Melton at the time of his 
death also owned lots 23 and 24, which he 
occupied as his homestead. 

The court, among other things, found that 
no valid gift of lots 25 and 26 was ever made 
by James R. Melton to W. S. Melton, or by 
W. S. Melton to the appellee, Lula Hicks 
Melton; that under our laws of descent and 
distribution the legal title to lots 25 and 26 
was in the appellant; that W. S. Melton 
died without any children or lineal descend- 
ants, and that the lots in controversy was 
an ancestral estate, and that the appellee 
therefore was entitled to be endowed with a 
one-half interest In the lots In controversy 
for her life; that she was also entitled to 
the lots in controversy as a homestead ; that 
she had not abandoned the same as a home- 
stead. The effect of the court's finding was 
that W. S. Melton died the owner of the 
property in controversy, and occupying the 
same as his homestead ; that he had no chil- 
dren or lineal descendants, and that the title 
to the property was In appellant his sister, 
but that the appellee, the widow of W. S. 
Melton, was entitled to dower in the lots In 
controversy, and also entitled to a homestead 
right in the lots; and that she had not 
abandoned such homestead. The court en- 
tered a decree, establishing the legal title to 
the lots in controversy in the appellant but 
denying her prayer for the possession of the 
property and to have dower allotted in same 
to the appellee. Other facts stated in opin- 
ion. 

C. W. McKay, of Magnolia, for appellant 
Stevens & Stevens and Kilgore & Kilgore, all 
of Magnolia, for appellee. 

WOOD, J. (after stating the facts as above). 
The appellant contends that the court erred 
in finding that the appellee was entitled to a 
homestead in the lots in controversy and in 
refusing to have the dower of appellee In the 



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ArkJ MELTON v. MELTON 21 



property allotted and set aside. W. S. Mel- 
ton and appellee, his wife, bad occupied the 
property In controversy as their home sev- 
eral years before the death of W. S. Melton. 
About eight months before the death of W. S. 
Melton, be and appellee went to appellee's fa- 
ther's, where they remained until W. S. Mel- 
ton died. Daring this time they returned oc- 
casionally to their home, the last time being 
about four months before W. S. Melton died. 
After the death of W. 8- Melton, the appellee 
moved all of her furniture out of the house 
and rented the property ; she bad not lived on 
the property since the death of her husband ; 
she at one time stated in a joke, since the 
death of her husband, that she would take 
$3,500 for the property; she had not resided 
on the place for a period of about seven 
yean. On one occasion, after her husband's 
death, appellee told the appellant that she 
did not know that she would ever live on the 
property in controversy again. 

[1-3 J The above is substantially the testi- 
mony upon which the court found that there 
had been no abandonment of the homestead 
upon the part of the appellee after the death 
of her husband, and this finding is not clearly 
against the preponderance of the evidence. 
It is a well-established rule of law that in 
order to constitute an abandonment the party 
having the homestead right must have re- 
moved from the home with the intention at 
the time never to return thereto; or, if he 
had no such Intention at the time, he must 
have formed the intent afterwards to never 
again occupy the abandoned premises as a 
home. In Stewart v. Pritchard, 101 Ark. 
101, 141 S. W. 505, 37 L. B. A (N. S.) 807, we 
said: 

"The abandonment of a homestead is almost, if 
not entirely, a question of intent This intent 
must be determined from the facts and circum- 
stances attending each case." 

The burden was on the appellant to show 
that appellee had abandoned her homestead, 
and the evidence is not sufficient to estab- 
lish that fact by a clear preponderance. 
There is no testimony In the record to show 
that the appellee, after the death of her 
husband, had acquired in her own right an- 
other homestead. The fact that she had 
not lived on the land in controversy for 
about seven years, and that she had rented 
same, was not inconsistent with a claim of 
homestead. While these facts tend to show 
a change of residence, they are not sufficient 
of themselves to establish an abandonment 
of the homestead. At least, it is not suffi- 
cient to warrant this court in reversing the 
finding of the trial court that there bad been 
no abandonment. See Robinson v. Swear- 
ingen, 55 Ark. 55-58, 17 S. W. 365. 

It will be observed that appellee did not 
tell appellant that she never intended again 
to live on the property in controversy. She 
stated that she did not know that she would, 
but that is quite a different thing from a 
positive statement that she would not, and 



to constitute an abandonment It must appear 
that there was a positive, affirmative in- 
tention, as we have shown, never to occupy 
again as a home the premises once im- 
pressed with a homestead character. There 
Is nothing in the- testimony to show that ap- 
pellee was applying the property in contro- 
versy to other uses inconsistent with the 
homestead purposes. A rental of the prop- 
erty is not inconsistent with an intention to 
return and occupy the premises as a home- 
stead. In the absence of some affirmative 
testimony to the effect that appellee had ex- 
pressed an intention never to return and 
occupy the premises as a homestead, and 
In the absence of any testimony showing 
a use of the property by appellee inconsistent 
with the claim of homestead, it cannot be 
said that the finding of the chancellor that 
there was no abandonment is against the 
preponderance of the evidence. The decree, 
therefore, on appellant's appeal must be af- 
firmed. 

[4] II. The appellee, on her cross-appeal, 
contends that the court erred in finding that 
there was no valid gift by her husband, W. 
S. Melton, to the appellee. Appellee at one 
place in her testimony, when asked, how she 
obtained title to the property, answered: 

"Through my husband ; his mother and sister 
deeded him the property, and he was to leave it 
to me." 

At another place in her testimony she 
stated that she made improvements on the 
place, believing that it was hers and her 
husband's. Further along in her testimony, 
she stated that before her husband's death 
he told her that whatever Interest he had in 
the place he gave it to her. That was "dur- 
ing his last illness." He stated this because 
witness had Improved the property and taken 
care of her husband, who was afflicted with 
tuberculosis. For that reason "he expressed 
on his deathbed that the title — whatever In- 
terest was in him — he wanted me [his wife] 
to have the place." In answer to leading 
questions she stated that she never would 
have made the repairs and Improvements that 
she did make if her husband had not turned 
the property over to her. She stated that 
her husband gave her the place about eight 
or nine years before he died. He did that 
when she began to put a good deal of im- 
provements on the place. 

There was testimony by several witnesses 
to the effect that W. S. Melton had said be- 
fore his death that he had given the lots to 
his wife for the money she had put on them; 
that It had cost her a great deal, and he 
wanted her to have it One witness tes- 
tified that just before bis death W. S. Mel- 
ton wanted to come to town to fix the deed 
to his wife to the lots, claiming that he had 
given her the property for advances made 
In improvements and his support 

Now if appellee acquired a fee-simple title 
to the property in ber own right, it was by 
virtue ot a gift of the same from her hus- 



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22 



191 SOUTHWESTERN REPORTER 



(Ark. 



band. Bat the above testimony is not suffi- 
cient to establish a gift of the land In con- 
troversy, either as a donatio Inter vivos or 
donatio causa mortis. At least the finding 
of the court to the effect that there was no 
gift is not clearly against the preponderance 
of the evidence, for whether the alleged gift 
be considered one Inter vivos, or causa mor- 
tis, delivery was essential to the completion 
of the gift Hatcher v. Bnford, 60 Ark. 169, 
29 S. W. 641, 27 L. R A. 607; Marshall Bank 
v. Turney, 105. Ark. 116, 118, 150 S. W. 693. 

There Is no testimony in this record to war- 
rant the finding that the appellee took posses- 
sion of the property and made improvements 
thereon under and by virtue of the alleged 
gift. She and her husband lived on the prop- 
erty as their homestead, and continued to live 
thereon until his death. There was no visi- 
ble change in the character of the posses- 
sion from the time she first went on It as 
the wife of W. S. Melton, the owner of the 
property, and the time when she claims that 
she made the Improvements thereon as her 
property; and, under such circumstances, It 
cannot be determined that her possession 
and the expenditures that she made upon 
the place were traceable to a gift of the 
property to her by her husband. The tes- 
timony shows that she entered Into the 
possession of the property originally as 
the wife of W. S. Melton, and occupied 
the same with him as their homestead, 
and there Is nothing in the record to 
show that the character of such possession 
was ever changed, or that she, at any time 
prior to his death, claimed that she was In 
possession In any way other- than by virtue 
of the fact that she was the wife of W. S. 
Melton. There was no deed from Melton to 
his wife; and, in order to establish a parol 
gift of real estate, there must be some tes- 
timony tending to show that the real estate 
was delivered to the donee, and that the 
donee took possession of the real estate un- 
der and by virtue of the gift In Young v. 
Crawford, 82 Ark. 83, 45, 100 S. W. 87, 91, 
quoting from Prof. Pomeroy, we said: 

"A parol gift of land will not be enforced un- 
less followed by possession and by valuable im- 
provements made by the donee. * • * When 
the donee takes possession and makes outlays 
upon valuable and substantial improvements in 
execution of lie donation, * * ' a parol gift 
of land will be specifically enforced." 

The above case and other cases cited by 
counsel for appellee, to wit, Naler v. Hallew, 
81 Ark. 328, 99 S. W. 72, and Guynn et aL 
v. McCauley et al., 82 Ark. 116, are not in 
appellee's favor, for the facts of those cases 
clearly show that there was a delivery of the 
property and possession taken under and by 
virtue of the gift. Not so here. The court 
was correct In finding the lands in contro- 
versy were ancestral 

The Judgment of the chancery court Is, In 
all things, correct, and it is therefore af- 
firmed. 



STACKHOUSE v. JOHNSON. (No. 64.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

Appeal and Ehbob $=>1005(2) — Review — 
Ruling on Motion fob New Trial. 
The appellate court will not reverse on an 
order denying a new trial where there is any 
substantial evidence to support the verdict. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. |{ 3860-3876; Dec Dig. <&=> 
1005(2).] 

Appeal from Circuit Court, Randolph Coun- 
ty; J. B. Baker, Judge. 

Action by R. L. Stackhouse, receiver, 
against Joe H. Johnson. Judgment for de- 
fendant and new trial denied, and plaintiff 
appeals. Affirmed. 

Lee Brooks was engaged In the mercantile 
business at the town of BIggers. September 
2, 1911, he sold a one-half Interest In the 
business to his brother Ell Brooks, and the 
business after that was conducted In the 
name of "Brooks Bros." until about the be- 
ginning of the year 1912, when Lee Brooks 
again became the owner of the business and 
conducted it In the name of "Lee Brooks." 
After this' Lee Brooks assigned to his broth- 
er J. T. Brooks, and went Into bankruptcy. 
His stock of merchandise, notes, accounts, 
and mortgages were sold at public auction at 
the bankruptcy sale, and Harry Hite became 
the purchaser thereof. 

The appellant R L. Stackhouse, was ap- 
pointed receiver of what is designated In the 
record as the "Harry Hite business." As 
such receiver he instituted this suit against 
Joe H. Johnson In replevin in the Randolph 
circuit court to recover possession of certain 
live stock consisting of mules and cows, 
which are described in the complaint He 
alleges that he was entitled to possession of 
the property by virtue of a chattel mortgage 
executed to Harry Hite In the sum of $273.- 
15, which mortgage came into his possession 
as receiver as part of the assets of the Harry 
Hite business. He alleges that the indebted- 
ness was past due and unpaid, and that the 
conditions of the mortgage were broken, that 
the appellee, Johnson, was in wrongful pos- 
session of the property, and that he was 
damaged in the sum of $75 for the wrongful 
detention of same. 

The appellee denied that he was Indebted 
to the "Harry Hite business," and denied 
that the appellant as receiver was entitled to 
the possession of the property by virtue of 
the chattel mortgage, or otherwise. He ad- 
mitted that on the date mentioned In the 
complaint he executed to Harry Hite a chat- 
tel mortgage on the property mentioned In 
the complaint with the understanding that It 
was given to secure only such indebtedness, 
if any, as he then owed Harry Hite; that 
the books showing the indebtedness claimed 
by Hite were not then in Htte's possession, 
and neither party could then determine how 



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ArkJ 



8TACKH0USE y. JOHNSON 



23 



they stood. He stated as a fact that at the 
time he executed the mortgage, he was not 
in debt to Hlte In any sum whatever, bat 
that Harry Hlte business was Indebted to 
him in the sum of $24.50, for which sum he 
prayed judgment. 

The appellant introduced in evidence the 
chattel mortgage referred to in his complaint, 
which recites that In consideration of the 
sum of $273.15, the appellee mortgaged the 
property described in the complaint to secure 
the indebtedness above named, which was 
evidenced by promissory note, and in addi- 
tion all other moneys, advances, goods, 
wares, merchandise, services, etc., that might 
be furnished by Harry Hlte to the appellee. 

The jury returned a verdict in favor of 
the appellee for $27.88. Judgment was en- 
tered in his favor for that amount, from 
which this appeal comes. Other facts stated 
in the opinion. 

Campbell, Pope A Spikes and S. A. D. 
Eaton, all of Pocahontas, for appellant. J. W. 
Meeks, C. H. Henderson, and B. O. Schoon- 
over, all of Pocahontas, for appellee. 

WOOD, J. (after stating the facts as 
above). As to whether or not the appellee 
was Indebted In any sum on the note secured 
by the mortgage, upon which this suit was 
instituted, was purely a question of fact. 
Appellant contends that there is no evidence 
to sustain the verdict, and that the appel- 
lee's own undisputed testimony shows that 
he was Indebted at the time of the institu- 
tion of this suit to the appellant, and that 
the judgment In favor of the appellee was 
therefore erroneous. 

Appellee testified in regard to the transac- 
tion out of which the note and mortgage 
arose substantially as follows: He bought 
goods from Lee Brooks; did not know any- 
thing about Harry Hlte. At the time Brooks 
went out of business he rendered appellee 
an itemized statement of account showing 
the amount to be $363.17, which he closed up 
on May 14, 1912, by note for that sum. This 
note was drawn by Clifford Price, the book- 
keeper for Brooks. After the note was exe- 
cuted appellee continued to buy goods from 
Lee Brooks until he went into bankruptcy. 
He traded some with him, paid him mostly 
cash In the year 1913. He stated that Harry 
Hlte claimed to be the owner of the book ac- 
counts of Lee Brooks, and explained the exe- 
cution of the mortgage as follows: Harry 
Hlte told me that I owed a balance of $272 
or $273. I told him I did not owe anything. 
He stated that the books were in Jonesboro ; 
asked me to give the mortgage, and stated 
when the books came from Jonesboro, if it 
was found that I did not owe him anything, 
he would fix it up. We called Hubert Nicks 
to witness the agreement. Hlte never got the 
books, and straightened the matter out as he 
agreed to. He said he did not have anything 
more to do with it 



Appellee testified to the book accounts that 
Lee Brooks had against him from 1911 to 
1913. This account was introduced in evi- 
dence, and it showed a balance due in the 
sum of $359.22. Appellee testified that the 
credits were not correct in two items, which 
totaled the sum of $20.55, for which he should 
have had credit. He also testified that be 
got the statement out of the post office, and 
went to Lee Brooks with the statement for 
correction, and he stated he would correct it. 
The doors were locked up the next day, and 
the books were sent to Jonesboro, and he 
never did correct it. I said: "Lee, you never 
gave me credit for my note. If you are go- 
ing to have these doors locked up, I want to 
settle with you." He said he bad got it fix- 
ed. Appellee stated that he paid the note 
given to cover this account. He gave the 
note to Hlte for what he claimed he owed 
him, but it was agreed at the time that when 
the books came from Jonesboro, he would 
settle with him according to the books. Hlte 
was to correct all errors. 

The statement of the Lee Brooks account 
was correct except the two little items for 
which he should have received credit, but 
he did not get credit for the note. Hlte 
claimed he bought the account in bankruptcy 
and asked him to make the settlement with 
him; that the account was a great deal more 
than the sum of $363, the amount the note 
was finally made for. Appellee told him, 
"If I owed the amount, I would pay it, but I 
do not owe it" The bookkeeper who kept 
the books at the time of these transactions 
testified that the note which appellee claimed 
he had not received credit for on the account 
was credited on the account and settled It up 
to May 10, 1912. That covered all debts from 
September 4, 1911, up to and Including the 
date of the execution of the note. The ap- 
pellee did not have any other account there 
at that time with Lee Brooks. 

An entry on the cash book was introduced, 
showing Johnson was credited by note May 
10, 1912, for $363.17, and items of the ledger 
were Introduced showing that that balanced 
his account up to that date. Pages of ledg- 
ers showing Items of account of appellee 
from September 4, 1911, until October 20, 
1913, debits and credits, were introduced. 
There was a balance of $388.07 shown to be 
due from the appellee to Lee Brooks. 

The testimony of Hubert Nicks corroborat- 
ed the testimony of appellee concerning the 
conversation between himself and Harry 
Hite as to the account which Hlte, as the 
purchaser at the bankruptcy sale of Lee 
Brooks, claimed that appellee owed him. 
Lee Brooks testified that there was not an 
Item that Johnson bought from him after 
September 2, 1911, that was included in the 
note in suit He said that the Itemised state- 
ment of account which had been put In evi- 
dence showing a balance of $359.22 In his 
favor, beginning with the first item Septem- 



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24 



191 SOUTHWESTERN BE POUTER 



(Ark. 



ber 4, 1911, represents the account of John 
son that was not included to the note of 
May 14, 1912. 

The appellee, being recalled, was asked 
whether or not at this time he was Indebted 
to R. L. Stackhouse as receiver, J. T. Brooks, 
Harry Hite, or any other person as evidenced 
by the books In any sum, and he answered as 
follows: "I find I am Indebted to some one 
as evidenced by these books in the sum of 
$55.76." It thus appears from the testimony 
that it was a disputed question of fact as to 
whether or not appellee was indebted to the 
appellant in any sum' at the time of the in- 
stitution of this suit This made an Issue for 
the Jury. 

Although the preponderance of the evi- 
dence appears to us to be decidedly in favor 
of the appellant, yet the Jury were the Judg- 
es of the evidence and the credibility of the 
witnesses, and it cannot be said as a matter 
of law that the testimony was undisputed, 
and that there was no evidence to sustain 
the verdict Where there is a conflict in 
the evidence, the trial court on motion for 
new trial must determine the question as to 
the preponderance. The court will not re- 
verse the ruling of the trial court in refusing 
to set aside a verdict, where there is any sub- 
stantial evidence to support the verdict See 
Twist v. Mulllnix, 190 S. W. 851, and cases 
cited. 

We have considered the objections urged 
by the appellants to the instructions, but we 
do not find any prejudicial error in the rul- 
ings of the court in granting and refusing 
prayers for instructions. The record as a 
whole Is free from prejudicial error, and the 
Judgment is therefore affirmed. 



MARKLE v. HART et al (No. 10.) 

(Supreme Court of Arkansas. Nov. 27, 1916. 
On Rehearing, Jan. 1, 1917.) 

1. CoiwrmmoNAr, Law «=»284(1.)— Drains 
«=2(1) —Eminent Domain «=»2<11) — Due 
Process of Law— Void Drainage Law— 
Cubattve Act. 
Acts 1911, p. 1245, establishing a drainage 
and levee district, being void for uncertainty 
of description, could not be cured by Acts 1913, 
p. 512, purporting to abolish the district and 
impose the cost of expenses theretofore incur- 
red on the lands, since the Legislature could 
not validate a contract made by those acting 
as directors of a district which never existed, 
to do which would be to take property of the 
landowners without due process of law and 
without compensation. 
[Ed. Note.— For other caaea, see OonstitutioOr 



Dig. «=»2(11)J 

On Rehearing. 
2. Dbauvs) ajb>S3 — Dbaihaqb Debtbict — Dz 
Facto Dibtbict. 
A drainage district attempted to be created 
under a statute which was void for uncertainty 
of description is not a de facto district since 



there ean be no de facto district unless there is 
a valid law under which a district could be 
organized. 

[Ed. Note.— For other cases, see Drains, Cent. 
Dig. ( 4; Dec. Dig. <S=>13.] 

Appeal from Craighead Chancery Court; 
Chas. D. Frierson, Chancellor. 

Suit by M. M. Markle against C. W. Hart 
and others to determine the right to the pos- 
session of land sold to foreclose a Hen for ex- 
penses Incurred for a drainage district 
From a decree finding the sale irregular and 
permitting defendants to redeem, plaintiff ap- 
peals. Decree canceling the sale affirmed, but 
that part requiring payment of the taxes and 
costs reversed, and cause remanded, with di- 
rections on original hearing and rehearing. 

Baker & Sloan, of Jonesboro, for appellant 
Hawthorne & Hawthorne, of Jonesboro, tor 
appellees. 

SMITH, J. In this cause it was alleged 
that by Act No. 457 of the Special Acts of 
1911, p. 1245, the General Assembly created 
the Cache River drainage district; but that, 
at the following session of the General As- 
sembly, this act had been repealed by Act 
No. 119 of the Acts of 1918, -p. 512 ; that the 
repealing act made provision for ascertaining 
the indebtedness which had been Incurred by 
the district and for its payment; and that 
pursuant to these provisions an indebtedness 
had been found due Alex Berger, as treas- 
urer of this district and this indebtedness 
was declared a lien upon the lands of the 
district which was prorated against the lands 
pursuant to the directions of the repealing 
act. The amount apportioned against ap- 
pellees' lands was not paid, and there was a 
decree of foreclosure of this supposed lien, 
and at the sale thereunder appellant bought 
the lands here involved. This sale was at- 
tacked by appellees upon the grounds that 
various irregularities existed in the rendition 
of this decree, and the court so found, and 
decreed that appellees had the right of re- 
demption and awarded them this right, and 
assessed the costs of the court below against 
them. 

Since the rendition of the decree so appeal- 
ed from, this court has rendered its opinion 
in the case of Morgan Engineering Co. v. 
Cache River Drainage District 122 Ark. 491, 
184 S. W. 57. As will appear from an Inspec- 
tion of that opinion, that was a proceeding 
to enforce a demand against the same drain- 
age district which undertook to enforce 
the lien above stated. In that case, In a dis- 
cussion of the above-mentioned acts, we said: 

"Counsel for appellant contends that, although 
all the prior proceedings were in valid, yet the 
General Assembly bed power to pass the act 
of 1918 abolishing the district and directing a 
levy upon the lands intended to be benefited 
for the preliminary expenses incurred under 
the alleged contract with the appellant and 
that the act levying the assessment for this pur- 
pose adopted the description of the lands as 



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AMERICAN NAT. LITE INS. 00. y. WHITE 



25 



assessed, and that therefore this letter act was 
not void for uncertainty. Board of Dir. Craw- 
ford County Levee Diet v. Dunbar, 107 Ark. 
285 [155 S. W. 961; Fellows t. McHaney, 113 
Ark. 363, 371 [168 8. W. 1098]; Thibault v. 
McHaney, 119 Ark. 188, 177 S. W. 877. We 
cannot agree with this contention of counsel, 
for the act of 1911, purporting to create the 
Cache River drainage district, as we have seen, 
was void ab initio because of the uncertainty 
in the description of the boundaries of such dis- 
trict. In the cases cited by appellant to support 
its contention the acts creating the districts 
were valid acts, and the districts were therefore 
legally brought into existence, and there was 
authority for incurring the preliminary expenses 
in forwarding and promoting the improvement 
contemplated. But such was not the case here. 

"The act of 1913 did not purport to and could 
not cure the defects of description in the act 
of 1911 that rendered the so-called Cache River 
drainage district void for uncertainty, and it 
was not within the power of the Legislature of 
1913 to validate contracts made with those act- 
ing in the capacity of directors of a district that 
never had in fact any existence and to make the 
preliminary expenses incurred under these void 
contracts liabilities against th<t land included in 
the proposed district. To do tuis would be tak- 
ing property of the appellees and other land- 
owners without due process of law and without 
compensation." 

[1] That case Is decisive of this. Having 
held that there was never any district and, 
consequently, no Indebtedness against It, we 
most hold the proceeding under which the 
sale took place to be coram non Judice. If 
there was no district, and therefore no In- 
debtedness, it must follow that there could 
be no lien covering an Indebtedness to fore- 
close. 

The court below directed appellees to pay 
appellant the taxes, penalty, interest, and 
costs paid by him when he purchased the 
lands, and assessed against appellees the 
costs of the court below. The Judgment of 
the court canceling this sale will be affirmed, 
but the direction requiring appellees to pay 
the taxes and costs will be set aside, and all 
the costs of this suit will be assessed against 
appellant. 

The decree will be reversed, and the cause 
remanded, with directions to enter a decree 
accordingly. 

On Rehearing. 

[21 We have not overlooked the case of 
Whipple v. Turwortb, 81 Ark. 391, 99 S. W. 
86, where It was held that a decree enforcing 
a lien on property within a de facto improve- 
ment district could not be shown to be void 
in a collateral attack because the district was 
not legally organized. This case is distin- 
guishable from that. There the decree of 
sale was rendered in the suit of a de facto 
corporation where the requisites for the ex- 
istence of such ,a corporation appeared. 
These were said to be: (1) A charter or gen- 
eral law under which such a corporation as 
It purports to be might lawfully be organized ; 
(2) an attempt to organize thereunder; (3) 
actual user of the corporate franchise. The 



first of these essentials Is absent here. There 
was no law under which this corporation 
could have had an existence. 

There can be no de facto officer unless 
there is a de jure office, and there can be no 
de facto corporation unless there is a charter 
or general law under which such a corpora- 
tion as this drainage district purported to be 
might have been lawfully organized, and we 
have held that the act under which the Cache 
River drainage district sought to proceed 
was abortive because the district was not 
properly described in the act purporting to 
create It There could have been no de jure 
district under this act of the General Assem- 
bly, and there could be, therefore, no de fac- 
to district 

It appears, however, that appellant paid 
certain taxes on the lands in question since 
his purchase, and to secure these he is enti- 
tled to a lien on the land, and the judgment 
is modified to the extent of declaring a Hen 
in appellant's favor for all taxes on the 
lands paid subsequent to his purchase at the 
commissioner's sale. 



AMERICAN NAT. LIFE INS. CO. v. 
WHITE. (No. 5L) 

(Supreme Court of Arkansas. Dec. 18, 1916.) 

1. Appeal and Ekeob <b=#66(2)— Continu- 
anck <8=>22 — review — discretion of 
Court — Denying Continuance — Ab- 
sence of Witnesses. 

An application for a continuance on the 
ground of absence of witnesses is addressed to 
the judicial discretion of the trial court, and 
his ruling will not be disturbed unless there 
has been a manifest abuse of discretion. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. { 3837; Dec. Dig. «8=>966(2); 
Continuance, Cent Dig. §} 58-67; Dec. Dig. 
< a .i .»22.] 

2. Continuance <s=>26(6>— Absence of Wit- 
nesses — Diligence — Issuance of Sub- 
poena. 

It is not an abuse of discretion to deny a 
continuance because of an absent witness for 
whom subpoena was not issued until the morn- 
ing of the trial, though the party had been en- 
deavoring to locate such witness. 

[Ed. Note.— For other cases, see Continuance, 
Cent. Dig. g 80; Dec. Dig. «8=»26(6).] 

8. Continuance ®=»46(7)— Absence of Wit- 
ness — Probability of Securing Testi- 
mony. 

A showing that an absent witness had been 
in Panama, and that his present whereabouts 
in South America might be learned by communi- 
cating with his employer in Panama, does not 
show such probability that his testimony could 
be secured as to render denial of a continuance 
an abuse of discretion. 

[Ed. Note.— For other cases, see Continuance, 
Cent. Dig. | 135; Dec. Dig. «=»46(7)J 

4. Constitutional Law «=»311— Insurance 
<g=>650(l) — Evidence — Cause of Death 
— Cobonee's Verdict. 
In an action to recover life insurance, the 
verdict of the coroner's jury is not admissible 
as original evidence of the cause of death, since 
the parties to the action were not parties to the 



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Ml SOUTHWESTERN REPORTER 



(Art 



inquest and to permit it to be made the basis 
of a finding affecting their rights would be to 
deprive them of property without due process 
of law. 

[Ed. Note.— For other cases, see Constitution- 
al Law, Cent. Dig. f 832; Dec. Dig. «=>311; 
Insurance, Cent Dig. H 1681, 1083; Dec. 
Dig. «=»658<1).] 

5. Insurance <8= 659(1) — Evidence; — Cor- 
oner's Vebdict— Submission with Proof 
or Death. 

Where a life insurance policy did sot re- 
quire the testimony and verdict at a coroner's 
inquest to be submitted with proofs of death, the 
voluntary submission thereof with such proofs 
did not render them admissible in an action on 
the policy, though if the policy required them 
to be submitted, they would be admissible in a 
subsequent action on the policy. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. §§ 1681, 1683; Dec. Dig. «=>65»(1).] 

6. Insurance <8=>668(11) — Actions on Pol- 
icy—Questions fob Jury— Violation of 
Law. 

In an action on a policy insuring the life 
of one killed in an altercation, which policy 
provided that it should be void If the insured 
lost his life while violating the law, where 
the evidence waa conflicting, whether the homi- 
cide was legally justifiable waa for the jury. 

[Ed. Note.— For other cases, see Insurance, 
Cent. Dig. {* 1745, 1763, 1764; Dec. Dig. <S=> 
068(11).] 

7. Insurance <8=>443 — Life Insurance — 
Violation of Law. 

If the sssured's adversary was guilty of 
unjustifiable homicide in killing assured, the 
latter's death is not within the exception of a 
policy against death while violating the law, but 
if the circumstances rendered the killing jus- 
tifiable, there was a violation of law within the 
exception. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. | 1148; Dec. Dig. «=»443.] 

8. Insurance <g=>602— Actions on Policies 
— Attobijey's Fees— Excessive Claims. 

In an action on a life policy, where there 
was a small sum due from assured at her death, 
which by the terms of the policy was to be de- 
ducted from the amount thereof, the fact that 
such sum was included in the sum prayed for, 
but was treated at the trial as not in issue, 
and was excluded by the jury from the re- 
covery, does not defeat the right to attorney's 
fees; the insurance company not having ten- 
dered the amount of the policy less such sum. 

[Ed. Note.— For other cases, see Insurance, 
Cent. Dig. | 1486; Dec. Dig. ®=>602.] 

Appeal from Circuit Court, Pulaski Coun- 
ty ; O. W. Hendricks, Judge. 

Action by Marie White against the Ameri- 
can National Insurance Company. Judgment 
for plaintiff, and defendant appeals. Af- 
firmed. 

Troy W. Lewis, of Little Rock, for appel- 
lant. W. H. Pemberton, of Little Rock, for 
appellee. 

HART, X In October, 1815, Marie White 
instituted this action against the American 
National life Insurance Company to recover 
upon a policy of life insurance. The undis- 
puted facts are as follows: On February 6, 
1814, the Insurance company issued an insur- 
ance policy in the sum of $600 on the life of 
Leana Wells, and Marie White, her sister, 

«=>For other cases 



was named as the beneficiary in the policy. 
Between 7 and 8 o'clock on the night of No- 
vember 10, 1814, TUlle Clark shot and killed 
Leana Wells In the city of Little Rock, Ark. 
One of the provisions of the policy was that 
no recovery be had thereunder should the 
Insured — 

"die as the result of a violation of the law, dur- 
ing the first year of the continuance of the pol- 
icy, and that in such event the liability of the 
company should be limited to the amount of the 
premium actually paid thereon." 

The policy was in force at the time Leana 
Wells was killed by Tillie Clark, and the 
company defended this action on the ground 
that the provision of the policy just quoted 
was violated. To sustain its defense the In- 
surance company introduced evidence sub- 
stantially as follows: It was shown that Til- 
lie Clark worked at a boarding house in the 
city of Little Rock, and was a small, active 
woman ; that Leana Wells was a large woman 
and that both of them were negroes; that 
Leana Wells bad complained to the proprie- 
tress of the boarding house that Tillie Clark 
was interfering between her and her hus- 
band, and that she was going to kill her. 

The proprietress of the boarding house tes- 
tified that she did not think from the way 
Leana Wells acted that she intended to kill 
Tillie Clark, but that it was all bluff, like 
negroes usually engaged in ; that Leana Wells 
was killed a few minutes after she left the 
boarding house. 

E. M. Harrington was the only eyewitness 
to the killing who testified In the case. His 
testimony Is substantially as follows: 

"I stepped out on the front porch of the 
boarding house in Little Rock, Ark., about 7:30 
or 8 o'clock on the night of November 10, 1814. 
As I looked over towards an electric light diag- 
onally across the street I saw under a large 
tree, possibly 25 feet from the corner, two wo- 
men scuffling, possibly not in anger. A moment 
afterwards they broke away rather hurriedly, 
and one of them started to run. Just after I 
noticed them break away, I saw the flash of 
a gun, and at the same time heard a report. It 
afterwards turned out that the smaller of the 
two women had the gun. The little woman was 
Tillie Clark, and the larger one Leana Wells. 
The little woman ran across the street and the 
larger one pursued her, and every 10 or 12 feet, 
it seemed that the large woman was getting 
closer and the smaller woman would turn ana 
fire at her with her pistol. I think the large 
woman had a stick, or something of that kind, 
in her hand. The little woman stopped and 
turned around and shot the first time or two 
over her shoulder, but when she shot the other 
times she turned and deliberately waited for 
the larger woman to approach her. She seem- 
ed to turn around more deliberately and take a 
better aim. She fired the first shot when she 
was about 5 or 6 feet away. When she fired 
the next shot she was probably 15 feet away 
from the larger woman. When the smaller 
woman would run, she would get farther ahead 
of the larger woman, but when she stopped to 
shoot, the larger woman would gain on her. 
Whenever the larger woman was nearer to the 
smaller one she would strike at her but I 
don't remember that she ever hit her. She was 
so far away." 



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AMERICAN NAT. LIFE INS. CO. v. WHITE 



27 



The Jury retained a verdjct tor the plain- 
tiff, and the defendant has appealed. 

[1] It is first Insisted by counsel for de- 
fendant that the court erred In not granting 
It a continuance on the ground of the absence 
of witnesses whose testimony was material 
to the defense. The application for continu- 
ance was addressed to the sound Judicial dis- 
cretion of the trial court, and the court's rul- 
ing will not be a ground for a reversal of the 
judgment unless there has been a manifest 
abuse of its discretion. The continuance was 
asked on account of the absence of TilUe 
Clark and a man named Brack, who, It is 
claimed, witnessed the killing. It was stat- 
ed that Tillle Clark would testify to a state 
of facts tending to show that she acted In 
self-defense In killing Leana Wells, and the 
particular facts she would testify to were 
set out In the motion for a continuance. 
The motion, also, set out the facts which 
would be testified to by Brack, and the 
purport of his testimony was to corrobo- 
rate that of Tillle Clark. The record shows 
that Tillle Clark killed Leana Wells on No- 
vember 10, 1914, that the coroner's inquest 
was held the next day, and that Tillle 
Clark and Brack were witnesses. The 
plaintiff, though her attorney, demanded pay- 
ment of the policy, and, upon being refused, 
instituted this action on October 0, 1916. The 
case was duly set down for trial on the 3d 
day of February, 1916. 

[2] The defendant admits that it did not 
have a subpoena Issued for these witnesses 
until the morning of the trial, but It shows 
that a law clerk in the office of Its attorney 
had occasion to go about the city of Little 
Rock collecting, and that on his run he would 
make Inquiries as to the whereabouts of 
these witnesses, and could not find them. It 
is also shown that defendant had Its agents 
In the city of Little Rock, soliciting insur- 
ance, and that these agents made inquiries 
for the witnesses and failed to find them. 
It was ascertained about 18 days after 
ihe trial that Tillle Clark was living In 
the city of Little Rock, and had been liv- 
ing there ever since the killing. On the 
morning of the trial the defendant's at- 
torneys learned that the witness Bruck had 
gone first to the Isthmus of Panama and lat- 
er to some place In South America and the 
attorneys' informant told him that he be- 
lieved that by writing to the witness' former 
address In Panama he would be able to find 
his present address in South America. Un- 
der this state of facts we do not think the 
court abused its discretion in refusing to 
grant a continuance. In regard to the wit- 
ness Tillle Clark, it may be said she had, 
during the whole time, been living In the city 
of Little Rock. It is true the defendant 
states that Its agents made a search for her 
and were not able to find her. This Is not 
sufficient A subpoena should have been Is- 
sued and placed in the hands of the sheriff 
for service. A party' to an action cannot 



usually claim that he has used due diligence 
in procuring the attendance of a witness by 
his own efforts merely to locate the witness. 
It is true it is his duty to notify the officer 
where the witness is If he knows the witness' 
residence and the officer does not. In the 
present case due diligence required that a 
subpoena be Issued and placed in the bands of 
the officer at an earlier date than the morn- 
ing of the trial. It is the duty of the sheriff 
to ascertain if the witness is in his -county 
and to serve the process on him. He has 
facilities for finding people not possessed by 
the ordinary citizen, and that is one of the 
reasons why it is made his duty to serve the 
process Issued by the court As we have 
already stated, the case was duly noted for 
trial, and it cannot be said that the sheriff 
could not have found a witness whom the 
proof showed to have resided all this time 
in the city of Little Rock. 

[3] In regard to the witness Bruck, it may 
be said that there Is no reasonable assurance 
that, if the continuance had been granted, his 
testimony could have been procured by dep- 
osition or otherwise at the next term of 
the court The defendant had merely been 
informed that he was somewhere in South 
America, and that his address might be found 
out from persons who knew him at his for- 
mer address in Panama. This showing was 
too Indefinite, and we do not think the court 
abused its discretion In refusing to grant the 
continuance. After Tillle Clark was found, 
a motion for new trial was filed on the 
ground of newly discovered evidence. What 
we have said above disposes of this point, and 
we do not think the court abused Its discre- 
tion in refusing a continuance on that ac- 
count 

[4] The next assignment of error presents 
the question of whether the verdict of the 
coroner's Jury was admissible as original evi- 
dence of the cause of the insured's death. 
This question has never been decided by this 
court. In the case of Grand Lodge, A. O. U. 
W., v. Banister, 80 Ark. 190, 96 S. W. 742, 
the court said that it had no hesitancy in 
holding that the verdict of the coroner's 
Jury does not make out a prima facie case 
of death from the cause stated in the ver- 
dict but at most could only be considered 
by the trial Jury along with the other testi- 
mony in the case. The court held, however, 
that, Inasmuch as the verdict of the coro- 
ner's Jury was Introduced at the request of 
appellant, it was unnecessary to decide 
whether or not it was competent evidence. 
The court said that the weight of authority 
seemed to be against the admissibility of 
such evidence in civil cases of this kind, and 
a number of authorities on both sides of the 
question are cited in the opinion. There are 
authorities sustaining the admissibility of 
such records at the common law. "The law 
gives such high credit to an inquisition of 
death, found before a coroner, that anciently 
the Judges would not receive a- verdict acquit- 



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191 SOUTHWESTERN REPORTER 



(Ark. 



ting a person of the death of a man found 
against the accused by the coroner's Inquest, 
unless the Jury finding such acquittal had 
also found what other person did the act, or 
by what other means the party came to his 
death, because It appeared by the coroner's 
▼lew, on record, that a person was killed." 
2 Rac. Abr. 431. Under our statute the coro- 
ner's Jury makes an ex parte investigation of 
supposed crime resulting in homicide for the 
purpose of aiding in the administration of 
the criminal laws of the state. Other per- 
sons having property Interests depending up- 
on the cause of the death are not allowed to 
participate in the bearing before the coro- 
ner's Jury with a view to establish rights by 
the verdict While the coroner's inquest is 
made on behalf of the state and a record of 
it Is required to be made and kept, it can- 
not, on any well-grounded principle of Ameri- 
can common law, become evidence in another 
suit as to the cause of the death investigat- 
ed. There is no good reason why a stranger 
to the proceedings should be in any wise 
bound by the verdict, or that it should be evi- 
dence against him of the cause of the death. 
If such verdict be admissible as evidence, it 
follows from its very nature that It might 
also constitute proof of the main fact and of 
every essential fact In Issue. It might not 
only show the fact of death by violent and 
external means within a day covered by the 
policy, but might also find that the person 
slaying the insured was Justified or was not 
Justified in killing him. In either event a 
property right of one or the other litigants 
would be determined by a verdict of which 
no notice was given to him, and without an 
opportunity to cross-examine the witness 
whose oaths established It He would be de- 
prived of his property without due process of 
law; for the first verdict might be sufficient 
to maintain the action or sustain the de- 
fense, as the case might be, if It was the 
only evidence offered or obtainable, and thus 
the verdict of the trial Jury would be mere- 
ly a formal ratification of the coroner's ver- 
dict Wje cannot see any well-grounded rea- 
son why such a verdict should be evidence 
against a stranger to the proceedings. In 
addition to the authorities cited in 'the Ran- 
lster Case, see JEtn& Life Insurance Co. v. 
Mllward, 118 Ky. 716, 82 8. W, 364, 68 I* R. 
A. 285, 4 Ann. Cas. 1002; Cluff v. Mutual 
Reneflt Life Ins. Co., 99 Mass. 825. 

[5] Again It Is Insisted that the verdict of 
the coroner's Jury and the testimony of wit- 
nesses taken at the coroner's inquest should 
have been introduced in evidence because a 
copy of the same was furnished defendant as 
a part of the proof of death made out by 
the plaintiff, and authorities are cited in 
support of their contention. We think, how- 
ever, this proposition is decided against the 
defendant by the principle announced in the 
case of Fidelity ft Casualty Co. v. Meyer, 106 
Ark. 91, 152 S. W. 995, 44 L. R. A. (N. S.) 
493. In that case It was held that where a 



life Insurance policy contained no provision 
for a waiver of privilege, and no physician's 
certificate was necessary as part of the 
proof of death, there was no waiver by the 
furnishing as part of the proof of death to 
the Insurer a certificate of the attending phy- 
sician in a voluntary attempt to secure a set- 
tlement There was no provision in the poli- 
cy requiring the verdict of a coroner's Jury 
and the testimony taken at the inquest to be 
furnished to the insurance company as a 
part of the proof of death. The question of 
the death of the insured is not an issue in 
this case. The undisputed evidence shows 
that she was killed by Tillie Clark. The only 
issue of fact in the case was whether or not 
TUlle Clark was Justifiable in killing her. 
/The rule is that where by the terms of the 
policy the record of a coroner's inquest is 
required to be attached to proofs of death 
made by the beneficiary or his agent such 
record is admissible upon the trial of a case 
upon the ground that it contains admissions 
of the beneficiary against his interest as to 
the cause of death. No such rule of evidence 
obtains, however, where the terms of the 
policy or the hv-lnwa nf the company do not 
require the verdict or record of the coroner's 
inquest to be furnished to the company as 
part of the proof of death. In cases like this 
the proof of death Is made in an effort to 
settle the loss, without a suit and it has no 
connection whatever with the trial where the 
company refused to make payment) 

The rule contended for can have no ap- 
plication where the record of the coroner's 
inquest is not furnished pursuant to the 
requirements of the policy, but merely as a 
voluntary act in an effort to secure a settle- 
ment Any other rule could hardly fail to 
be conducive of abuse or injustice. 

[I] It is next earnestly insisted by counsel 
for defendant that the court erred in refusing 
to direct a verdict for the defendant In 
the case of the Supreme Lodge, Knights of 
Pythias, v. Bradley, 73 Ark. 274, 83 S. W. 
1055, 67 U R. A. 770, 108 Am. St Rep. 38, S 
Ann. Cas. 872, the court held : 

"A death received while retreating from a per- 
sonal difficulty in good faith, and not for the 
purpose of gaining a vantage ground to renew it, 
although deceased began the assault with a 
weapon capable of inflicting great bodily harm, 
was not a death received while in violation of 
any criminal law, within a policy of insurance 
providing that if the asaured's death should 
be received in a violation, or attempted viola- 
tion, of any criminal law, then the amount to 
be paid on the policy should be in proportion 
to the whole amount as the matured life ex- 
pectancy is to the entire expectancy at date of 
admission of such member." 

In the opinion the court quoted from the 
case of Bradley v. Insurance Co., 45 N. T. 
422, 6 Am. Rep. 115, as follows : 

"So long as the evidence falls short of estab- 
lishing that the homicide was legally Justifiable, 
I can see no safe rule by which the court could 
be guided in deciding that the provocation prov- 
ed was the cause of the killing, and in with- 
drawing that question from the consideration of 
the Jury." 



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MINNBQUA COOPERAGE CO. T. DAVIDSON 



The effect of the holding la that where the 
eridenoe Is conflicting as to whether the hom- 
icide was legally Justifiable or was the result 
of malice or excessive violence on the part 
of the stranger, the question of proximate 
cause and the adequacy of the provocation la 
for the Jury. 

[7] In a case note to 13 L. R. A. (N. S.) at 
page 262 the rule Is stated as follows : 

"A personal encounter between the assured 
and his slayer has been the cause of the greater 
number of cases in which has arisen the ques- 
tion whether the assured's death was within 
the exception of a policy relieving the insurer 
if the death was caused by a violation of law. 
In such cases it may be laid down as a generally 
accepted rule that, if the assured's adversary 
is guilty of unjustifiable homicide in killing the 
assured, the tatter's death is not within the ex- 
ception; while, on the other hand, if the as- 
sured is slain under such circumstances as ren- 
der the killing justifiable homicide, there is a 
violation of law on the part of the assured with- 
in the exception." 

Tested by this rule of law, it cannot be 
said that the court should have directed a 
verdict for the defendant. We do not deem 
it necessary to review the evidence, but con- 
sider that a mere reading of It Is sufficient. 
We need, therefor only refer to it as set out 
in the abstract 

[t] Finally, it la insisted that the court 
erred in allowing an attorney's fee and penal- 
ty as provided In the statute. When the in- 
sured was killed she was In arrears in the 
sum of |3.90 on her premiums, and this 
amount, according to the terms of the policy, 
should have been deducted from the amount 
of the policy. The jury found for the plain- 
tiff for the face of the policy, less $3.90. 
This was an Insignificant sum, and doubtless, 
If the plaintiff's attention had been called to 
it, she would have amended her complaint 
so as not to ask for that sum. It Is obvious 
that plaintiff only contended for the amount 
due her under the policy, and that by the 
terms , of the policy the company had a right 
to deduct the $3.90 from the face of the pol- 
icy. The $3.90 is such an Insignificant sum 
compared with the face of the policy that it 
is evident the plaintiff by mistake did not 
deduct It from the face of the policy In her 
complaint. It was conceded throughout the 
trial that the $8.90 was not In Issue. If the 
Insurance company desired to avoid the pen- 
alty and attorney's fees, It should have offer- 
ed to confess Judgment for the amount of the 
policy, less the $3.90; and, not having done 
so, the court properly allowed the attorney's 
fees and penalty provided for In the statute. 
Great Southern Fire Ins. Co. v. Burns & Bll- 
Ungton, 118 Ark. 22, 175 S. W. 1161, L. B. A. 
1916B, 1252. 

We have not overlooked the assignments 
of error in regard to the giving of instruc- 
tions relied upon for a reversal of the judg- 
ment; but we do not deem it necessary to 
set them out or to review them here. It is 
sufficient to say that the instructions given by 



the court were according to the principles of 
law laid down In this opinion, and fully and 
fairly presented the respective theories of the 
parties to the jury. 
The Judgment will be affirmed. 



MINNBQUA COOPERAGE CO. v. DAVID- 
SON et al (No. 69.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

1. Appeal and Bbbob «= 882(13)— Review— 
Estoppel to Aixkoe Ebbor— Instructions. 

In an action for the cutting of timber, de- 
fendant cannot complain of an instruction sub- 
mitting the question of treble damages, author- 
ised by Kirby's Dig. 8 7976, as abstract, where 
it also asked an instruction submitting the same 
question, which was given. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. f 8603; Dec Dig «=>882(18).] 

2. Appeal and Ebbob «=> 882(12)— Pbesxnt- 
ino Questions in Trial Coubt— Instruc- 
tions— Objections. 

In an action for the cutting of timber, de- 
fendant cannot complain of an instruction sub- 
mitting the question of treble damages as being 
on the weight of the evidence, where it request- 
ed an instruction on the same subject and made 
no specific objection to the instruction in ques- 
tion on that ground. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. f 8602; Dec. Dig. *=»882(12).] 

8. Principal and Agent <8=»24— Existence 
op Aoenot— Question fob Jury. 
In an action for the cutting of timber, evi- 
dence held to authorise submission to the jury 
of the question whether an employe of defend- 
ant was acting as its agent in receiving the tim- 
ber and selling bolts made therefrom. 

[Ed. Note. — For other cases, see Principal and 
Agent Cent. Dig. $ { 722, 723; Dec. Dig. «=>24.] 

4. Appeal and Bbbob #=>928(5)— Review— 
Presumptions— Matters Not Shown bt 
Record. 

Where appellant fails to set out all the in- 
structions given in his abstract, it is presumed 
that correct instructions were given curing those 
complained of, if they were curable. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. | 3754; Dec. Dig. «g=»928(5).] 

Appeal from Circuit Court, Hot Spring 
County; W. H. Evans, Judge. 

Action by H. H. Davidson and others 
against the Mlnnequa Cooperage Company. 
From a judgment for plaintiffs, defendant 
appeals. Affirmed. 

H. H. Davidson sued the Mlnnequa Cooper- 
age Company, Bob Price, and Gus Sledge to 
recover the value of certain trees which he 
alleges they wrongfully cut and removed from 
his land. The material facts are as follows: 

Davidson owned a tract of timber land In 
Hot Spring county, Ark., and the Mlnnequa 
Cooperage Company owned other tracts of 
timber land adjoining it The line between 
Davidson and the Cooperage Company was 
blazed out. Bob Price was woods foreman 
for the Cooperage Company, and he made a 
contract with Gus Sledge to cut oak bolts 
from the company's land. Price told Jim 
Garland, another employe of the company, to 



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191 SOUTHWESTERN SBPOKTBB 



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show Sledge and Us bolt cutters where the 
line was between the land of the company 
and that of Davidson. Sledge got sick and 
did not do any work himself. His men went 
on the land and began to work cutting bolts. 
They cut eleven oak and one pine tree from 
the land of Davidson. They stated that they 
did not know that these trees were on the land 
of Davidson, but thought they were on the 
land of the company ; that Jim Garland, an 
employe of the company, showed them where 
to cut 

Bob Price testified that he did not see the 
bolt cutters at work except once, and at that 
time they were on the company's land and 
bad not gone on Davidson's land, at any 
point He admitted that after the men had 
cut the bolts, he received them for the com- 
pany, sold them, and paid the men for their 
work. He stated that at this time that he 
did not know any timber on Davidson's land 
had been cut down and worked Into bolts by 
the men; that he went there and examined 
the stumps after Davidson had put in a claim 
for the value of the timber ; and that the tim- 
ber cut from Davidson's land was not worth 
more than $10. 

Jim Garland testified that the bolt cutters 
did not come to him to show them the line 
until after they had cut some trees beyond 
the line. 

Davidson testified that the line between 
him and the company was plainly marked 
out, and that Price and other employes of 
the company knew where it was; that Price 
knew the timber belonged to Davidson at 
the time he received the bolts and sold them. 
According to the testimony of Davidson elev- 
en oak and one pine tree were cut from bis 
land, and they were worth $100. According 
to other witnesses, the timber cut was worth 
from $80 to $100. The jury returned a ver- 
dict for Davidson against the Minnequa 
Cooperage Company, and assessed his dam- 
ages at $80. The Cooperage Company has 
appealed. 

Jas. A. Comer, of Little Rock, for appellant 
D. D. Glover, of Malvern, for appellees. 

HART, J. (after stating the facts as above). 
[1] At the request of counsel for the plaintiff 
the court submitted to the Jury the question 
of treble damages. This instruction was 
based upon section 7976 of Klrby's Digest 
It Is insisted by counsel for the defendant 
that there Is no testimony In the record which 
would warrant the submission of this question 
to the Jury, and that the Instruction tended 
to confuse and mislead the Jury. If It be 
conceded that the Instruction was abstract 
defendant is In no attitude to complain; for 
It asked an instruction submitting the ques- 
tion of treble damages to the Jury, and it 
was given. It Is well settled that an appel- 
lant cannot complain of an instruction given 
at appellee's Instance as abstract if appel- 
lant asked and the court gave an Instruction 



bearing upon the same subject St L., I. M. 
ft S. R. Co. v. Carter, 93 Ark. 588, 126 S. W. 
99. Numerous other cases establishing the 
rule might be cited, but we deem it unneces- 
sary. 

[2] Counsel for appellant also urge as an 
objection to the instruction on this subject 
given at the request of the appellee that It is 
prejudicial in that the court in it expressed 
its opinion on the weight of the evidence. 
As we have just seen, the court gave an in- 
struction on this same subject at tbe request 
of appellant It Is evident from this that the 
court did not mean in the instruction on the 
same subject given at the request of the ap- 
pellee to express an opinion as to the weight 
of the evidence. If counsel for appellant 
thought the Instruction open to this objection^ 
he should have made a specific objection to it* 
and doubtless the court would have changed 
the language to meet his objection. Not 
having done so, he la not now in an attitude 
to complain of the action of the court in this 
regard. 

[S] Counsel also assigns as error the action 
of the court In giving Instructions which sub- 
mitted to the jury the question of whether or 
not Bob Price was acting as agent of the com- 
pany In regard to receiving the timber and 
gelling the bolts. Counsel claims that the in- 
stuctlons submitting this issue are abstract 
and tended to confuse and mislead tbe Jury. 
We do not agree With counsel in this conten- 
tion. Bob Price was introduced as a wit- 
ness by the Cooperage Company, and in re- 
sponse to questions asked testified that he 
entered into a contract with Sledge to cut 
oak bolts from the company's land; that he 
told Jim Garland to show the bolt cutters 
where the line was between the land of the 
company and that of Davidson. He admitted 
that he took up the bolts for the company 
and sold them and paid the bolt cutters. 
Davidson also testified that Price knew where * 
the line was, and the undisputed evidence 
shows that the bolt cutters cut eleven oak 
and one pine tree from the land of Davidson, 
and that the company received the bolts made 
from this timber and converted it to Its own 
use. The only Issues about which there was 
any dispute whatever were as to the value of 
the timber and as to whether or not the tim- 
ber was cut from Davidson's land by mistake 
or willfully. 

[4] Counsel also assigns as error the ac- 
tion of the court in giving other Instructions. 
Counsel has failed to set out all the Instruc- 
tions given by the court in his abstract and 
we cannot consider these assignments of er- 
ror under the rules of the court. The fail- 
ure of an appellant to set forth the Instruc- 
tions of the court in full in his abstract raises 
the presumption that correct Instructions 
were given curing those complained of If 
they are curable. Jacks v. Reeves, 78 Ark. 
426, 95 S. W. 781; Wallace v. Strickler, 96 
Ark. 108, 128 S. W. 565. We do not deem It 



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SCULLIN 



EOFF 



31 



necessary to set oat the Instructions. There 
Is nothing to Indicate that If defective, they 
were so radically defective that they could 
not be cured by other Instructions. The de- 
fendant's theory of the case seems to have 
been fairly presented to the Jury. 
The judgment will be affirmed. 



SCTJLLIN et aL t. EOFF et al. (No. 71}.) 
(Supreme Court of Arkansas. Jan. 1, 1917.) 

1. Oabribbs «=>228(6)— Live Stocx— Rate- 
Evidence. 

In an action for damages for injury to a 
jack from rough handling and delay, evidence 
held to show that plaintiffs knew nothing of a 
form of contract for unlimited liability, and not 
to show that they desired such a contract, or 
would have used it had it been available. 

[Ed. Note.— For other cases, see Carriers, 
Dec Dig. <S=»228(6).] 

2. Carriers <g=218(7) — Live Stock— Choice 
or Rates— Knowledge. 

It is immaterial that a shipper of a jack un- 
der a limited liability contract did not know of 
his choice of rates, if any, under a contract for 
unlimited liability. 

[Ed. Note.— For other cases, see Carriers, 
Cent. Dig. ff 674-606, 946; Dec. Dig. «=» 
218(7).] 

8. Cabbixbb <8=218(7)— Live Stock— Limita- 
tion or Liability— Damages. 
Where an interstate carrier bnd a right to 
receive a jack at a rate designated as a limited 
liability contract and it did not refuse to permit 
a shipment under a higher rate and upon an un- 
limited liability contract, the shipper's recovery 
would be governed by the limited liability con- 
tract on the basis of valuation released to $100. 

[Ed. Note. — For other cases, see Carriers, 
Cent Dig. tf 674-696, 946; Dec. Dig. <8=> 
218(7).] 

Appeal from Circuit Court, Boone County ; 
Jno. I. Worthington, Judge 

Action by Flem Eoff and another against 
John Scullin and others, receivers of the 
Missouri & North Arkansas Railroad Com- 
pany. Judgment for plaintiffs, and defend- 
ants appeal. Judgment reduced to $100, and, 
as modified, affirmed. 

See, also, 120 Ark. 452, 179 S. W. 663. 

W. B. Smith, J. Merrick Moore, and H. M. 
Trieber, all of Little Rock, for appellants. G. 
J. Crump, of Muskogee, Okl., and E. 6. 
Mitchell, of Harrison, for appellees. 

SMITH, J. Appellees shipped, In inter- 
state commerce, as part of a mixed shipment 
of live stock, a jack, from Smlthton, Mo., to 
Bellefonte, Ark. The jack developed car 
founder as a result of rough handling and 
delay In transit. The shipment moved over 
the Missouri Pacific Railway from Smlthton 
to Joplin, and thence to destination over the 
line of appellants. It was appellees' inten- 
tion to ship directly through to their destina- 
tion, but the agent of the initial carrier billed 
the jack only to Joplin, at which point ship- 
ments from one road were diverted to the 
other, and the shipment was rebilled at Jop- 



lin to its final destination. The rate paid at 
destination was $99.70, being the rate from 
Smlthton to Joplin on the basis of the valu- 
ation of the jack released to $100, plus a $2 
switching charge at Joplin, plus the rate 
from Joplin .to Bellefonte on the released 
valuation basis. The combination of rates 
paid by appellees exceeded the through rate 
from Smlthton to Bellefonte, on the basis of 
the valuation released to $100, by the sum of 
$28.40. This excess charge was voluntarily 
refunded. According to appellants, the re- 
fund was made when, upon checking up, it 
was ascertained that appellees were entitled 
to it and should have been charged only the 
joint rate, instead of the combined local 
rates ; but according to appellees, the refund 
was made only when the Information had 
been communicated to appellants that this 
suit would be brought. 

At the time of this shipment there were 
three rates In force. The lowest of these Is 
the immigrant rate, to which appellees would 
not have been entitled, and under which they 
did not undertake to ship. The second rate 
is the one commonly used and designated as 
the limited liability contract The third form 
of contract is for unlimited liability, and the 
amount of the rate under that contract de- 
pends upon the declared valuation. An ad- 
dition of 25 per cent, to the rate based on a 
valuation not exceeding $100 is charged for 
each $100, or fraction thereof, In excess of 
$100. For Instance, if the jack had been de- 
clared to be worth $500, the rate would have 
been 200 per cent of the released valuation 
rate. In other words, there was an Increase 
of one-fourth of the limited liability rate for 
every $100 of excess valuation. The. tariff 
sheets further provided that animals of a 
declared valuation exceeding $800 per head 
would be carried only by special arrange- 
ment. 

[1] A judgment was rendered for $2,250, 
the full value of the jack, and it Is Insisted 
by appellants that It is liable only to the ex- 
tent of the $100 on account of the provision 
to that effect in the contract of shipment. 
Appellees say they should be allowed to re- 
cover the full value of the jack because they 
were denied the right to ship under any oth- 
er contract, and, as we understand their posi- 
tion, they claim the benefits of an unrestrict- 
ed contract because they were afforded the 
opportunity only of shipping under the con- 
tract issued them. 

We have searched this record in vain for 
any evidence to support a finding that appel- 
lees desired to ship under an unlimited con- 
tract The proof does show that they made 
complaint against the rate which was charg- 
ed, and that the agent told them they would 
ship under this contract if they shipped at 
all. But there Is nothing in the testimony of 
appellees themselves to show, or intimate, 
they complained about the limitations of 11a- 



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32 



191 SOUTHWESTERN. REPORTER 



(Ark. 



bility ; nor la there amy proof that they de- 
sired to ship, or would have shipped, wider 
the higher rate had the opportunity been 
afforded, and, while they did testify that 
they discussed the value of the Jack with the 
agent of the Initial carrier, the proof 1b to 
the effect that they were complaining against 
the excessiveness of the rate charged. They 
testified that when the car was rebilled at 
Joplin, Mo., the agent of the railway there 
told appellees they could have saved money 
by telling a lie and claiming they had an im- 
migrant car, as shipments of that character 
went at the cheaper rate. Appellee Eoff tes- 
tified that he asked this agent why It was 
that he could ship a car of stock from Belle- 
fonte to Kansas City at a lower rate, and 
was told that his shipment was a mixed one 
and that he paid on the entire shipment at 
the highest rate charged for any part of the 
shipment He also testified that he request- 
ed a lower rate and that It was refused. 

It appears that appellees shipped at the 
lowest available rate. They were not en- 
titled to the immigrant rate, and therefore 
had no choice of shipping under it. The tes- 
timony would support a finding that they 
knew nothing of the unlimited liability rate 
and were not told about it; but there is no 
testimony that they desired such a contract, 
■ or would have used It had it been available. 
Their complaint to the agent was that the 
rate charged was too high, and they paid 
this rate only because they were told they 
would have to do so If they shipped at all. 

[2] In the reeent cases of C, N. O. & T. P. 
Ry. Co. v. Rankin, 241 U. S. 319,' 36 Sup. Ot 
556, 60 L. Ed. 1022, and B. & M. Ry. Co. v. 
Hooker, 238 TJ. S. 97, 34 Sup. Ct 526, 58 L. 
Ed. 1141, and in other decisions of the Su- 
preme Court of the United States there cited, 
the law is declared to be that it Is immaterial 
that the shipper does not know of the choice 
of rates if such choice exists. It may be the 
law that, notwithstanding the carrier has 
complied with the law by establishing the 
different rates, and filing the proper tariff 
schedules with the Interstate Commerce Com- 
mission, and thereby became entitled to use a 
form of contract restricting liability, yet, If 
they deny shippers the right of choice be- 
tween the forms of contract and require the 
use of a restricted liability contract, they 
cannot claim that exemption from liability 
which Inures to the carrier which had in fact 
offered Its shippers this choice. But this rec- 
ord does not present that question. 

[S] We have no right whatever to inquire 
Into the reasonableness of any of these rates, 
and it to not denied that appellant bad the 
right to use the form of contract here em- 
ployed ; and, as the proof does not show any 
refusal to permit appellees to ship under the 
more expensive form of contract, we must 
modify the judgment to conform to the stip- 



ulations ot the contract wider which the 
shipment was made. 

Appellees argue that the decision upon the 
former appeal to the law of this case (Eoff 

r. Scullin et al., 120 Ark. 402, 179 S. W. 663), 
and that it was there held, in effect, that 
this was a common-law contract of shipment 
with all the liabilities Incident thereto. Such, 
however, Is not the effect of that decision. 
Upon the former trial from which that appeal 
was" prosecuted the court below held that 
there could be no recovery of any amount be- 
cause the shipper had not given notice of 
the Injury and damage to the jack within 
one day after arrival at its destination as 
stipulated in the contract We held this pro- 
vision unreasonable and unenforceable as ap- 
plied to the facts of that case and remanded 
the cause for further proceedings. No other 
question was there determined 

The judgment of the court below will be 
reduced to $100, and, as thus modified, will 
be affirmed. 

HALL et al. v. EQUITABLE SURETY CO. 
(No. 67.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

1. Indemnity <j=»1— Principal Ann Surety 
<S=>5, 126(6) — Discharge of Surety — ■ 
Notice to Sub— Existence or Relation. 

Kirby's Dig. §§ 7921-7928, providing that 
if suit be not commenced against a principal 
witbin 30 days after notice by the surety to the 
creditor, the surety shall be exonerated fror* 
liability, do not apply to a bond indemnifying 
a surety company from loss on its bond insur- 
ing the fidelity of an employe where the employe 
was not a party to the indemnity bond, since 
the latter bond is not a contract of suretyship 
in any form, but merely a contract of indemnity. 

[Ed. Note.— For other cases, see Indemnity, 
Cent Dig. § 1: Dec. Dig. *=»1; Principal and 
Surety, Cent Dig. §5 5, 350, 350%; Dec. Dig. 
<S=>5, 126(6).] 

2. Principal and Surety «=»6— Nature of 
Obligation. 

Where a contract takes the form of ordi- 
nary suretyship, the agreement of the surety 
is that he will do the thing which the prin- 
cipal has undertaken. 

[Ed. Note.— For other cases, Bee Principal and 
Surety, Cent Dig. g 6; Dec Dig. «=»6.] 

3. Principal and Surety «ja»6— Nature or 
Obligation. 

In a contract of guaranty, the agreement of 
the guarantor is that the principal will do what 
he is bound to perform. 

[Ed. Note.— For other caBes, see Principal and 
Surety, Cent Dig. f 6; Dec Dig. <8=»6.] 

4. Indemnity «=»1— Principal and Surety 

Nature op Contract— Distinction 

from Suretyship. 
Contracts of indemnity are distinguished 
from those of guaranty and suretyship, m that 
the engagement is to make food and save an- 
other from loss on some obligation to a third 
person, and is not a promise to one to whom 
another is answerable. 

[Ed. Note. — For other cases, see Indemnity, 
Cent. Die. § 1; Dec Dig. «=>1; Principal and 
Surety, Cent Dig. I 6; Dec. Dig. <8=»6.] 

Appeal from Circuit Court, Poinsett Coun- 
ty; J. F. Gautney, Judge. 



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Ark.) 



HALL v. EQUITABLE SURETY 00. 



33 



Action by the Equitable Surety Company 
against B. W. Hall and others. From a 
judgment for plaintiff, defendants appeal. 
Affirmed. 

L. F. Oornellson, on or about November 
24, 1913, began working for the St Louis & 
San Francisco Railroad Company as agent at 
Lepanto, Ark. The St. Louis & San Francis- 
co Railroad Company required the said Oor- 
nellson to execute to them a bond. The 
Equitable Surety Company, a corporation un- 
der the laws of the state of Missouri, execut- 
ed a bond on the 24th day of November, 1913, 
to the St Louis & San Francisco Railroad 
Company in the sum of $600. 

On the 23d day of April, 1914, appellants 
executed a bond to the appellee which re- 
cites, in part, &> follows: 

That whereas we, the undersigned, have re- 
quested the Equitable Surety Company to sign 
and execute a certain bond or undertaking exe- 
cuted on behalf of L. F. Cornelison in favor 
of the St Lome & San Francisco Railroad Com- 
pany, effective November 24th, in the sum of 
§500.00, and whereas the company (Equitable 
Company) has signed and executed or is about 
to sign and execute the said instrument upon 
condition of the execution and delivery hereof 
find upon the security and indemnity hereby 
and herein provided: Now therefore, in con- 
sideration of the premises and of the sum of 
$1.00 in hand paid to us by the company, we, 
the undersigned, hereby covenant and agree 
with the company, its successors and assigns, 
in manner following: 

That we will at all times indemnify and keep 
indemnified the company, and hold and save it 
harmless from and against any and all demands, 
liabilities and expenses of whatsoever kind or 
nature, including counsel and attorneys' fees, 
which it shall at any time sustain or incur by 
reason or in consequence of having executed 
the said instrument; and that we will pay over, 
reimburse and make good to the company, its 
successors and assigns, all sums and amounts 
of money which the company or its represen- 
tatives shall pay or cause to be paid or become 
liable to pay, under its obligation upon said 
instrument, or as charges and expenses of what- 
soever kind or nature, including counsel and at- 
torneys' fees, by reason of the execution thereof, 
or in connection with any litigation, investiga- 
tion or other matters connected therewith, such 
payment to be made to the company as soon as 
it shall have become liable therefor, whether 
it shall have paid out said sum or any part 
thereof or not 

That in any settlement between us and the 
company the vouchers or other proper evidence 
showing payment by the company of any such 
loss, damage or expense, shall be prima fade 
evidence against us of the fact and amount of 
our liability to the company, provided that 
such payment shall have been made by the com- 
pany in good faith, believing that it was liable 
therefor. 

Cornelison did not sign the bond. Appel- 
lee instituted this suit against the appellant 
on the above bond, alleging that It had been 
forced to pay the railroad company, by rea- 
son of the bond It had executed to that com- 
pany, the sum! of $217.75, the amount due 
said railroad company by Cornelison. The 
appellee introduced in evidence a verified ac- 
count in the sum of $217.75 which it had paid 
the railroad company on the 29th day of Sep- 
tember, 1915. On September 5, 1916, Glrdley, 
181 S.W.-8 



one of the appellants, wrote the appellee and 
demanded that it file suit against Cornelison. 
Suit was not filed within 30 days after the 
receipt of the letter by the appellee. The 
appellant Glrdley testified that he could not 
swear that the itemized statement of what 
the appellee had paid for Cornelison was not 
true. The amended bill of exceptions shows 
that the question came up as to whether sec- 
tions 7921 and 7922 of Kirby's Digest ap- 
plied to the bond in suit, and the court ruled 
that those sections did not apply to this par- 
ticular bond, but that the bond in suit came 
within section 7923 of Kirby's Digest, and 
that the giving of notice and the failure to 
file suit within 80 days thereafter did not 
relieve the sureties, and that the only ques- 
tion In the lawsuit was the question of 
amount The court told the Jury that the 
itemized statement of account filed and sworn 
to was prima fade evidence of its correct- 
ness until denied under oath. The Jury re- 
turned a verdict for the appellee In the sum 
of $217.75, and, from a judgment entered in 
appellee's favor for that sum, this appeal Is* 
duly prosecuted. 



S. L. Gladlsh, of Osceola, for appellants. 
Mardis & Mardis, of Harrlsburg, for appel- 
lee. 

WOOD, J. (after stating the facts as 
above). [1] Section 7921, Kirby's Digest 
provides: 

"Any person bound as surety for another in 
any bond, bill or note, for the payment of money 
or the delivery of property, may, at any time 
after action bath accrued thereon, by notice in 
writing, require the person having such right of 
action forthwith to commence suit against the 
principal debtor and other party liable." 

Section 7922 provides : 

"If such suit be not commenced within thirty 
days after the service of such notice, and pro- 
ceeded in with due diligence, in the ordinary 
course of law, to judgment and execution, such 
surety shall be exonerated from liability to the 
person notified." 

Section 7923 provides: 

"The two preceding sections shall not extend, 
first to the bond of any executor, administra- 
tor, guardian or other person given to secure 
the performance of his trust or the duties of his 
office; nor, second, to any bond with collateral 
conditions, except bonds with collateral condi- 
tions exclusively for the payment of money or 
the delivery of property, or exclusively for the 
performance of a covenant or agreement tor the 
payment of money or delivery of property." 

The court correctly ruled that sections 
7921 and 7922, supra, had no application to 
the bond under consideration. 

Cornelison was not the principal In the 
bond. He did not sign the same, nor did ap- 
pellants sign the same as his sureties. The 
case of Town of Moaticello v. Conn & Kuhn, 
48 Ark. 254, 3 S. W. 80, cited by the appel- 
lants, has no application, for that case was 
a suit against a prlndpal and his sureties 
for the payment of a certain sum of money. 
There the recitals of the bond show that it 
was signed by the principal and by the sure- 



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191 SOUTHWESTERN REPORTER 



(Ark. 



ties. They were designated respectively as 
such. The court held, In that case, that the 
sureties having given the notice provided by 
the statute to the obligee to sue the principal 
in the bond, which the obligee had failed to 
do, the sureties were thereby exonerated. 
The bond under consideration Is not a con- 
tract of suretyship In any respect, nor Is 
the contract under review one with any col- 
lateral undertakings whatever, In the sense 
contemplated by the statute. Sections 7921 
and 7922, supra. Manifestly, the statute is 
applicable only In those cases where there Is 
a principal debtor, or obligor, and a surety. 
In such cases, where the surety has notified 
the creditor or obligee as prescribed by the 
statute, then such creditor or obligee cannot 
maintain an action against the surety until 
he has brought suit and pursued the same 
with diligence to Judgment and execution 
against the principal debtor or obligor. 

[1] Where the contract takes the form of 
ordinary suretyship, "the agreement of the 
' surety la that he will do the thing which the 
principal has undertaken." 

[S] If the contract assumes the form of a 
guaranty, then "the agreement of the guar- 
antor is that the principal will do what he 
is bound to perform." 12 B. C. L. 1057, i 8. 
But the bond In suit is not that of surety- 
ship in any form. It is an original contract 
of Indemnity between the appellants and the 
appellee, by which the appellants undertake 
to indemnify the appellee against any "de- 
mands liabilities and expenses," which it 
may have incurred, or any sums of money 
which It may have paid in good faith, or 
have become liable for by reason or in con- 
sequence of having executed the bond to 
the railway company. 

[4] Contracts of indemnity "are distin- 
guished from those of guaranty and surety- 
ship, in that in Indemnity contracts the en- 
gagement is to make good and save another 
from loss upon some obligation which he has 
Incurred, or is about to Incur, to a third per- 
son, and is not as in guaranty and surety- 
ship a promise to one to whom another Is 
answerable." 22 Oyc. 80. 

A contract of indemnity is an original and 
Independent one. Between the promisor and 
the promisee, there is a direct privilege, while 
there is no debt owed by the third person to 
the promisee, and there is no remedy against 
such third person. 20 Cyc 1402, in cases 
cited in note 83. 

In Vandiver & Co. v. Pollak, 107 Ala. 547- 
668, 19 South. 180, 182 [64 Am. St. Bep. 118], 
it Is said: 

"Indemnity springs from contract express or 
implied, and in a general way may be defined 
as an obligation or duty resting on one per- 
son, to make good any loss or damage another 
has incurred, while acting at his request or for 
his benefit." 

See, also, 14 B. C. L. 43, SI 1, 2. 



The bond under the above definitions Is 
clearly an indemnity contract, and not one 
of surety or guaranty. There Is nothing in 
the record to show that the appellee — the 
obligee in the bond — had any remedy what- 
ever against the third party, Cornelison. 
The bond sued on does not show that Cor- 
nelison was indebted to appellee. Nor does It 
show any undertaking upon the part of ap- 
pellants to pay any debt of Cornelison to ap- 
pellee. 

There were no exceptions to the instruc- 
tions of the court, and there was evidence 
under the instructions to sustain the ver- 
dict 

The Judgment is therefore correct, and it 
is afllnned. 



WILLIAMS et al. v. NORTON et aL 
(No. 66.) 

(Supreme Court of Arkansas. Jan. 1, 1917.) 

Wnxs «=»687(3>— Constkttotioit— Rbstdtjaby 

Clause— Fee- Simple Estate. 
A win authorizing executors to sell or rent 
realty, dividing the rental proceeds and in- 
terest on sales among certain relatives, and 
providing that "any residuum not provided for 
I wish given" to a daughter, does not devise to 
her the fee title, and the land should be distrib- 
uted as intestate property. 

[Ed. Note.— For other cases, see Wills, Cent. 
Dig. H 1282-1284; Dec. Dig. <S=>687(3).] 

Appeal from Hempstead Chancery Court; 
Jas. D. Shaver, Chancellor. 

Partition suit by N. B. Norton and others 
against Brice Williams and others. Decree 
ordering sale of land and division of pro- 
ceeds, and both parties appeal. Reversed and 
remanded. 

This suit was instituted by the appellees 
against the appellants for partition of cer- 
tain lands in Hempstead county. The cause 
was heard upon an agreed statement of facts, 
substantially as follows: 

A. B. Williams died in 1896. He owned 
some 4,200 acres of land and certain personal 
property. He was survived by R, B. Wil- 
liams, John E. Williams, Hugh B. Williams, 
Nal Williams, Ora Field Ratcllff, and Kate 
Old, his children, and Annie G. Williams, his 
widow. E. C. Old was adjudged a bankrupt 
on July 29, 1912, and N. B. Norton is the 
trustee in bankruptcy of his estate, and was 
authorized to bring this suit. All parties to 
the suit are of age. Mrs. Kate Old died in- 
testate In 1905, leaving the following chil- 
dren: B. C. Old, Oscar D. Old, Thos. E. 
Old, and Katherlne Old McRae. The other 
children of A. B. Williams are all dead, 
leaving children surviving them. The widow 
of A. B. Williams Is still living, and has, 
since his death, intermarried with O. O. Steel. 
The heirs of Mrs. Kate Old claim to own the 
lands which belonged to the estate of their 
grandfather, A. B. Williams, and which by 
this suit are sought to be partitioned under 
his will, which was duly probated. 



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WILLIAMS 



v. NORTON 



35 



By the second and (bird paragraphs of 
the will he gave to his wife his homestead 
In the town of Washington, and certain other 
lands, specifically designated, "to have, hold, 
use and enjoy, with the rents and profits 
thereof for and during her natural life"; 
and also his "household and kitchen furni- 
ture, including pictures, silverware, and oth- 
er like things," except the piano. In other 
clauses of the will he also bequeathed to his 
wife certain other articles of personal prop- 
erty (naming them), and $100 out of any mon- 
■ey that he might have on hand at the time 
of his death. He gave to his grandson. 
Ellas Carruth Old, his gold watch. He gave 
his law library to his son R. B. Williams, in 
payment of $160 borrowed from him. 

The twelfth and thirteenth paragraphs of 
the will read as follows: 

"Twelfth: I hereby nominate and appoint my 
ions R. B. Williams and Nal Williams the ex- 
ecntors of this my last will with all the power 
I can give them by law to settle my affairs of 
my estate. I five them full power to collect, 
compromise, adjust, compound and settle all 
and any debts dne me the same as if I were 
living. I wish them to collect all debts due 
me which may be collected and to pay all just 
debts which I may owe. I do not want them 
to be required to give any security on their 
bond for the execution of this will or to be re- 
quired to do anything In the probate court ex- 
cept probating this will. I give them power 
to rent, lease or sell any lands except those 
reserved in the second item of this will. I 
wish them to sell any of my lands on such 
terms as they may think right and to take notes 
for the same and give bonds for title to convey 
them with full and plenary powers in the dispo- 
sition of my lands. In ease of trouble about 
titles or possession of any lands of mine, I 
give them full power to compromise and ad- 
just such differences as fully and completely as 
I could do if living." 

"Thirteenth: I hereby wish the proceeds of 
the sale of my lands which my executors may 
sell to be disposed of as follows: One-third 
thereof to my wife, Annie G.. so long as she 
lives, and the other two-thirds to my daughter, 
Kate Old, for the use of herself and children 
so long as she may remain a widow. She is 
now destitute with a family of children, and 
mora in need than any other of my children." 

In the fourteenth paragraph he remitted 
any debts that his children might owe him, 
and he gave to each of them the sum of 
$1. This paragraph concludes as follows : 

"If I have made any omissions in the direc- 
tions about my bequests herein, my said exec- 
utors are fully empowered to supply them. 
My son R. B. Williams and I own some land 
jointly as tenants in common, which I wish dis- 
posed of as I have directed about my lands 
held in my own right Any residuum not pro- 
vided for herein I wish to be given to my 
daughter Kate Old." 

The court found that Mrs. Annie G. Steel, 
formerly Mrs. A. B. Williams, Is the owner 
in fee simple of an undivided one-third share 
of all lands belonging to the estate of A. B. 
Williams, deceased, and that the heirs of 
Mrs. Kate Old are the owners In fee of the 
remaining undivided two-thirds of those 
lands, and found that such lands could not 
be partitioned, and therefore entered a de- 
cree ordering that the lands be sold and the 



proceeds be divided In accordance with the 
finding, after paying the taxes that were a 
first Charge upon the lands. 

Appellants have appealed from the decree 
in favor of the heirs of Mrs. Kate Old, and 
the appellees appeal from the decree In favor 
of Mrs. Annie O. Steel, formerly the widow 
of A. B. Williams. 

Etter ft Monroe, of Washington, for ap- 
pellants. J. W. Morrow, of Forrest City, 
for appellees. 

WOOD, J. (after stating the facts as 
above). In Finlay v. King's Lessee, 3 Pet 
346, 7 L. Ed. 701, Chief Justice Marshall 
said: 

"The intent of the testator is the cardinal 
rule in the construction of wills; and if that 
intent can be clearly perceived, and is not 
contrary to some positive rule of law, it must 
prevail/' 

Our own court has reiterated this rule In 
almost every case in which the construction 
of a will is Involved. In the very latest case 
(Harrington v. Cooper, 189 S. W. 667, 668) 
Mr. Justice Hart, speaking for the court, 
said: 

"In construing the provision of a will, the 
intention of the maker is first to be ascertain- 
ed, and, when not at variance with recognized 
rules of law, must govern. The intention of 
the testator must be gathered from all parts of 
the will, and such construction be given as will, 
if possible, give force and meaning to every 
clause of the will." 

See, also, Little v. McGuire, 113 Ark. 497, 
168 S. W. 1084; Archer v. Palmer, 112 Ark. 
627, 167 S. W. 99, Ann. Ca& 1916B, 573; 
Webb v. Webb, 111 Ark. 64, 163 S. W. 1167; 
Galloway v. Darby, 106 Ark. 668, 161 S. W. 
1014, 44 L. B. A. (N. S.) 782, Ann. Cos. 1914D, 
712; Parker v. Wilson, 98 Ark. 553, 136 S. 
W. 981. 

When the language of this entire will la 
considered we do not discover any purpose 
upon the part of the testator, A. B. Wil- 
liams, to devise his real estate In fee simple 
to any one. In the twelfth paragraph of his 
will he gives his executors "full and plenary 
powers'' In the disposition of his lands; 
that is, "to rent, lease or sell any of his 
lands," on such terms as they might think 
right, except his homestead and other lands, 
which he specifically designates, that were 
given to his wife, Annie G. Williams, "to 
hold, use and enjoy during her natural life." 
So far as his other real estate was concern- 
cerned, the testator Intended that his two 
sons, bis executors, In whose "business ca- 
pacity and integrity he had unlimited confi- 
dence," should dispose of the same In any 
manner they saw proper. If they rented the 
lands the rental proceeds were to be divided 
equally between his wife and his widowed 
daughter, Mrs. Kate Old, and if his execu- 
tors sold any of the lands the proceeds of the 
sale were to be divided between his wife as 
long as she lived and Mrs. Kate Old as long 
as she. remained a widow, one-third going 
to the wife and two-thirds to Mrs. Old. 



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191 SOUTHWESTERN REPORTER 



In tbe Ant clause of bis will the testator 
states that "It was not likely that he would 
hare any ready money on hand at the time 
of his death," and that his wife would "be 
destitute of any ready money and without 
any certain income." In another clause of 
his will he states that his daughter Kate Old 
was destitute, with a family of children, and 
more in need that any other one of his chil- 
dren. To certain of bis children, whom he 
names, he gives the nominal sum of $1. 

These expressions of solicitude for his wife 
and widowed daughter show that he regard- 
ed them as more dependent upon him than 
any of the other beneficiaries named in the 
will, and it was his evident intention to 
make final disposition of all of the personal 
property of which he might die possessed by 
specific bequests, and if anything was omit- 
ted of such personal property that his execu- 
tors should have full power to supply the 
same. There Is not a single word in the will 
that indicates a purpose upon the part of 
the testator to devise the real estate of which 
he died seised. He does not even vest the 
title of such real estate In his executors as 
his trustees with power to selL The whole 
will shows that the purpose of the testator 
was to have his estate wound up In such way 
that his debts should be paid, and that his 
wife, as long as she lived, and his widowed 
daughter and her children, as long as she re- 
mained a widow, should be provided for out 
of the rents and the proceeds of any sales 
that might be made of his real estate. This 
was the dominant purpose of those para- 
graphs of the will giving the executors power 
to rent, lease, or sell any of his lands (except 
those reserved in the second paragraph) up- 
on such terms as they might think right, and 
designating the manner in which' the pro- 
ceeds should be divided. 

The testator, in different paragraphs of 
his will, had bequeathed certain designated 
articles of personal property to his wife, and 
other designated articles to certain of his 
children. For instance, to his son and law 
partner his library, with the understanding 
that it should pay a debt that he owed this 
son, and a piano to his daughter, with the 
understanding that the debt he owed her also 
should be canceled. While there is no testi- 
mony in the record as to the value of these 
articles of personal property, they were 
doubtless worth fully as much or more than 
the debts he owed these children, and he 
made these specific bequests to his wife and 
the particular children named no doubt for 
the reason that, under the circumstances, 
be deemed such bequests most appropriate 
for them. The whole will shows that the 
testator had no Intention of favoring one 
child above another in the bequests of per- 
sonal property, but it does show that, so far 
as the proceeds to be derived from the rent 
or sale of his real estate, be intended that 
Mrs. Old should be preferred to them on 
account of her necessities. 



After making bequests of various desig- 
nated items of personal property, the will 
shows that the testator thought that there 
might be some omissions, and that if he had 
omitted any Items these should go to his 
daughter. After the testator had made his 
will he added a codicil, bequeathing to his 
daughter Ora Field Ratcllff the set of books 
known as Encyclopedia Brlttanica. This cod- 
icil shows that he bad omitted to mention 
(in the will proper) and to make bequest 
specifically of all of his personal property. 
The clause, "any residuum not provided for' 
herein I wish to be given to my daughter, 
Mrs. Kate Old," also shows that the testa- 
tor had in mind that there might be certain 
personal property that he bad not specifical- 
ly bequeathed to any of the other benefi- 
ciaries, and such as he had not thus disposed 
of he wished to give to Mrs. Old. The words 
"any residuum not provided for herein" 
could not have referred to his lands, and 
were obviously .not intended by the testator 
as a devise of lands to his daughter Mrs. 
Old. The testator had made the only dis- 
position of the lands that he desired to make, 
by conferring upon his executors unlimited 
power to sell or lease the same. If the tes- 
tator had Intended to devise the lands to 
Mrs. Old and to vest a fee-simple title in her 
to the exclusion of the other heirs, being a 
lawyer of ability, as the agreed statement of 
facts shows that he was, he doubtless would 
have employed more appropriate language. 
It would be a strained construction of the 
language used, in connection with all the 
other provisions of the will, to hold that it 
vested In Mrs. Old a fee-simple title to the 
lands mentioned in the petition in the suit 
for partition. The language of the will 
clearly indicates that it was the purpose of 
the testator that his binds should be sold by 
his executors, if necessary, for the support 
of his widow during her life and for the sup- 
port of Mrs. Old and her children, as long as 
she remained a widow. But certainly there 
is no language in the will that would justify 
the conclusion that the testator intended not 
only to provide for Mrs. Kate Old and her 
children as long as she remained a widow, 
but also to vest in her the fee-simple title. 

Being a lawyer of ability, and therefore 
familiar with the technical errors that are 
used to devise real estate in fee simple, it is 
Inconceivable that A. B. Williams would 
have used the vague terms in the residuum 
clause quoted If he had intended to devise 
his lands in fee simple to Mrs. Old. If such 
had been his Intention he doubtless, in ex- 
press terms, would have said that if there 
remained any real estate after the executors 
had carried out the purposes of his will as 
expressed In other paragraphs that such re- 
siduum he devised in fee simple to Mrs. Old. 
The language of the will, as above stated, ex- 
cludes any such intention. In the absence 
of any language in the will which either ex- 
pressly or by necessary Implication carries 



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WILLIAMS 



V. NORTON 



37 



the Idea that he Intended to devise the fee- 
simple title to any one, the presumption 
against partial intestacy so far as the lands 
are concerned cannot be indulged. 

In the old English case of Dehn v. Gaskln, 
2 Cowp. 657 (1777), Lord Mansfield declared 
that: 

"Though the Intention is ever so apparent, 
the heir at law must of course inherit unless 
the estate is given to somebody else." 

That rale has never been departed from so 
far as we are advised, either in England or 
In this country. The reason for the doctrine 
is that courts cannot make wills for parties, 
and by so doing annul the laws of descent and 
distribution. 

Scnauber v. Jackson, 2 Wend. (N. Y.) 18, 
Is one of the leading cases in this country, 
and there the provisions of the will were 
somewhat similar to the one here under re- 
view, only the language of the will was much 
stronger to raise a devise by implication to 
the exclusion of the heir at law than is the 
language of the will in the case at bar. The 
court for the correction of errors there held: 

"If there is not sufficient In a will to take the 
case out of the role of law that all the estate 
which is not legally and sufficiently devised to 
some other person must go to the heir,, the heir 
will take, whatever may have been the inten- 
tion of the testator." 

Following this decision, the Supreme 
Courts of Virginia and Georgia, also in cases 
where there is an exhaustive review of the 
authorities, held that: 

"An heir can be disinherited only by express 
devise or necessary implication, so strong that 
a contrary intention cannot be supposed; that 
the heir cannot be disinherited unless the es- 
tate is given to somebody else." Boissean v. 
Aldridges, 8 Leigh (Va.) 222, 27 Am. Dec. 590; 
Wright v. Hicks, 12 Ga. 155, 56 Am. Dec 451. 

In the last above case it was held (quoting 
syllabus): 

"Intent to disinherit heir is essential to raise 
an estate by implication, the presumption being, 
in the absence of plain words in the will to the 
contrary, that the testator intended that his 
property should go in the legal channel of de- 
scent." 



See, also, Doe ex dem. Clendenning v. Lanl- 
us, 3 Ind. 441, 56 Am. Dec. 518. 

Applying the doctrine of the above cases to 
the will under review, there is certainly no 
language in it that either expressly or by 
necessary Implication overcomes the presump- 
tion that A. B. Williams Intended that bis 
real estate, subject to the uses to which he 
had subjected It under the provisions of his 
will, should go In the legal channel of de- 
scent. To hold otherwise would be to make 
a will for the testator, and one too that 
would create an unjust discrimination in fa- 
vor of the heirs of Mrs. E. C. Old as against 
the other heirs of the children of A. B. Wil- 
liams. To our minds, after a careful reading 
of this will, it never entered the mind of A. 
B. Williams, by the provisions of his will, to 
deny any of his children their rights to an 
equal Inheritance in such lands as might re- 
main after the purposes of the support and 
maintenance of his widow and widowed 
daughter, as expressed in his will, had been 
carried out To construe this will as favor- 
ing one set of grandchildren to the exclusion 
of another we believe would do violence to 
the Intention of their grandfather, as gath- 
ered from a consideration of the will as a 
whole. 

The court erred therefore In decreeing the 
heirs of Mrs. Old two-thirds of the proceeds 
derived from the sale of the lands ordered 
by It The court also erred in awarding to 
the widow absolutely one-third of the pro- 
ceeds of the sale of these lands. The widow, 
under the law, was entitled to one-third in- 
terest in these lands for life as her dower. 
The testator did not make any provision for 
the widow in his will in lieu of dower. Up- 
on a sale of the lands In partition the widow 
will be entitled to one-third of the proceeds, 
not absolutely, but only to the benefit of the 
use of such proceeds as long as she lives. 

The decree Is therefore reversed, and the 
cause will be. remanded for further proceed- 
ings according to law and not Inconsistent 
with this opinion. 



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191 SOUTHWESTERN REPORTER 



(Mo. 



STATE ex rel. TRUMAN v. JOST et aL, Board 
of Police Com'rs. (No. 18549.) 

(Supreme Court of Missouri, Division No. 1. 
Jane 2, 1916. On Rehearing, 
Dec. 20, 1916.) 

X. Municipal Corporations «J=>164 — Om- 
cebs «J=»100(2) — Increase or Salaries — 
Police Detective— "State and Munici- 
pal Officer." , 
A police detective, appointed for three years 
under the safeguards thrown about his position 
by Rev. St. 1899, H 6189, 6190, 619$ 6193, 
and wbo was paid by the city, but could exercise 
authority in any part of the state, was both 
a municipal and state officer within Const art. 
14, { 8, forbidding increase of the compensation 
of state or municipal officers during their term. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. if 370, 371 ; Dec. Dig. 
«=>164; Officers, Cent Dig. | 164; Dec Dig. 
«=>100(2). 

For other definitions, see Words and Phrases, 
First and Second Series, State Officer.] 

2. Municipal Corporations «=>164— Police 
Officers — Salaries — Statute — Amend- 

MBNT 

Acts 1909, p. 319, now Rev. St 1909, | 9787, 
providing for the appointment of police detec- 
tives in cities of a certain size and fixing their 
salaries, and repealing Rev. St 1899. f 6192, 
which provided for a less salary for such officers, 
was, in legal effect, only an amendment of the 
former statute, and a police detective appointed 
under the earlier statute is not entitled to the 
increased salary for the portion of his term 
which had not expired when the new statute 
became effective. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. || 370, 871 ; Dec. Dig. 
«=»164.] 

On Rehearing. 
8. Municipal Corporations «j=»164— Police 

Officers— TENUREf—' 'Term. ' ' 
Rev. St 1899, § 6189, provides that police 
officers having served one year probationary 
service may be appointed for an additional term 
of three years, and shall thereafter be subject to 
removal only for cause and upon complaint 
made or charges preferred against them. Sec- 
tion 6190 authorizes the chief of police to sus- 
pend police officers during the pendency of 
charges, and provided that the board might dis- 
charge police officers for the reason that the 
force was larger than the interests of the public 
demanded, or that there was insufficient money 
to pay the expenses of maintaining the force as 
then organized, in which cases no complaint or 
charges are necessary, but when the vacancies so 
created are to be filled the officers removed shall 
be reappointed. Section 6191 provided that 
police officers, whose terms of service have ex- 
pired, shall be preferred in making new appoint- 
ments, and section 6192 fixed the number of such 
officers and their salaries. Held, that the pow- 
er to remove because the services were not need- 
ed, or because there were no funds with which 
to pay the officers, was one which would exist 
in the absence of any statutory provision, and 
the existence of such power does not prevent a 
police detective from having a "term" within 
the constitutional provision against increasing 
salaries during the term. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. H 870, 871 ; Dec. Dig. 
«=»164. 

For other definitions, see Words and Phrases, 
First and Second Series, Term.] 

Appeal from Circuit Court, Jackson Coun- 
ty ; Joseph A. Guthrie, Judge. 



Application for mandamus by the State, on 
relation of Ralph E. Truman, against Henry 
L. Jost and others, Board of Police Commis- 
sioners of Kansas City. Judgment denying 
peremptory writ, and relator appeals. Af- 
firmed on original hearing and on rehearing. 

On January 6, 1913, relator filed in the 
circuit court aforesaid a petition for a writ 
of mandamus against the police commission- 
ers of said city, who were then in authority. 
On April 28, 1918, an amended petition was 
filed, making the present respondents defend- 
ants in said action. The purpose of this pro- 
ceeding Is to compel respondents, as police 
commissioners of Kansas City, Mo., to Issue 
to relator a warrant for $725.83, drawn upon 
the treasurer or other disbursing officer of 
said city, and to do every other act and thing 
necessary to be done by them to secure re- 
lator his alleged full compensation of $1,380 
per annum, during the period between Sep- 
tember 16, 1909, and February 17, 1912, as 
provided by sections 9778, 9779, R. & 1909, 
or show cause why they have not done so. 
The petition alleged : 

That section 6192, R, S. 1899, provided for 
the appointment of relator as a police detective 
in said city; "that having previously served a 
probationary period of one year, relator was, 
upon February 17, 1909, appointed to the above- 
mentioned office of police detective, for a term 
of three years, subject, however, to five suspen- 
sions or removal for cause, and further subject 
to discharge without cause, motive, or hearing, 
ff at any time, in the opinion of the board, the 
police force were larger than the interests or the 
public require, or if there are not sufficient 
funds with which to pay expenses of said police 
department as then organized." 

It Is then averred that the office of police 
detective was abolished June 14, 1909, by the 
Forty-Fifth General Assembly of Missouri; 
that on said date said section 6192, R. S. 
1899, was repealed and a new section enacted 
In lieu thereof (Acts 1909, p. 319), now known 
as section 9787, R. S. 1909, of Missouri, and 
which provides that police detectives should 
be paid $1,380 per annum. It is further al- 
leged that after the passage of above act, 
and upon June U, 1909, relator was duly and 
legally appointed to the office of police detec- 
tive, for a term of three years, beginning on 
said June 14, 1909, and immediately accepted 
said office, and continuously thereafter, until 
June, 1912, occupied the same and performed 
all the duties relating thereto, and thereby 
became entitled to the salary and emoluments 
of said office. It is averred that from June 
14, 1909, to September 16, 1909, relator was 
paid at the rate of $1,380 per annum; that 
from September 16, 1900, to February 17, 
1912, he was paid at the rate of $1,080 per 
annum; that by reason of the premises, he Is 
entitled to his unpaid salary of $725.83, etc. 
An alternative writ of mandamus, substan- 
tially following the language of the petition 
aforesaid, was issued, and respondents, on 
May 10, 1913, filed their return thereto, and 
allege in substance: (1) That the circuit court 



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STATE v. JOST 



89 



wu without Jurisdiction to try the case, In 
tola form of action. (2) They admit that they 
constitute the present board of police com- 
missioners of Kansas City, Mo. (3) They say 
that relator, having served more than one 
year of probationary service as police de- 
tective prior to February 17, 1909, was, on 
Bald date, appointed police detective for three 
years, at a compensation of $1,080 per an- 
num, or |90 per month, as provided In sec- 
tion 6192, R. S. 1899; that from the date of 
said appointment, up to and including Feb- 
ruary 17, 1912, relator accepted the sum of 
$1,080 per year as full compensation for his 
services, except that by mistake he was paid 
at the rate of $1,380 per annum from June 
15, 1909, to September 16, 1909; that when 
said mistake was discovered, he was there- 
after paid, and accepted, the sum of $1,080 
per year, in full satisfaction of his salary 
from said September 15, 1909, until February, 
1912. It is further averred that relator's sal- 
ary. In view of section 48 of article 4, and 
section 8 of article 14, of the Constitution of 
Missouri could not be Increased during his 
term of office from February 17, 1909, to 
February 17, 1912. (4) It is further averred 
by respondents that from 1909 to 1912, in- 
clusive, there were employed as many officers 
in the police department of said city as its 
revenue would permit; that during each of 
said years, the police department expended 
all of the money apportioned or appropriated 
to it ; that the Police Commissioners of Kan- 
sas City have never had, and have not now, 
enough money to pay any salaries, or parts 
of salaries, except as heretofore paid; that 
if the salaries of police officers In the service 
at the time of the enactment of section 9787, 
R. S. 1909, had been Increased by said stat- 
utes to take effect June 14, 1909, the board 
of commissioners aforesaid would have been 
compelled to reduce the number of officers 
employed In said police department, and 
plaintiff would have been discharged; that 
relator held his position during all of said 
time, by virtue of the salaries fixed when he 
was appointed in February, 1909, whereby 
said board of commissioners were enabled to 
retain him in their service. The return fur- 
ther avers that relator, with full knowledge 
of all the facts aforesaid, accepted the 
amount due him twice each month, without 
objection and In full satisfaction of the 
amount which Kansas City claimed was due 
him; that by continuing \a said department 
and accepting the salary paid him the relator 
is now estopped to claim any greater or addi- 
tional compensation. The reply of relator 
put in Issue the facts set out in respondent's 
return. Such portions of the evidence as 
may be necessary will be considered In the 
opinion. The trial court found, In substance, 
that the office held by relator was not abol- 
ished by the act of 1909 (Acts 1909, p. 319); 
that relator was a municipal officer of Kan- 
sas City, Mo., within the contemplation of 
section 8, art 14, of our Constitution; and 



that his salary could not be increased during 
his term of office. The peremptory writ was 
accordingly denied, and Judgment in due 
form entered in behalf of respondents. Re- 
lator filed motions for new trial and in ar- 
rest of Judgment, both of which were over- 
ruled, and the cause duly appealed to this 
court 

M. B. Casey, Frank D. Rader, and James 
M Rader, all of Kansas City, for appellant 
J. A. Harzfeld, A F. Evans, Hunt C. Moore, 
and A F. Smith, all of Kansas City, for re- 
spondents. 

RAILEY, a (after stating the facts as 
above). [1] I. Section 8 of article 14 of the 
present Constitution provides, that: 

"The compensation or fees of no state, county 
or municipal officer shall be increased during his 
term of office; nor shall the term of any office 
be extended for a longer period than that for 
which such officer was elected or appointed." 

Did relator, when he was appointed police 
detective on February 17, 1909, for three 
years from said date, at a salary of $1,080 per 
annum, come within the purview of section 
8, art 14, supra? The safeguards thrown 
about relator's position, by sections 0189, 
6190-6192, and 6193, R. S. 1899, at the time of 
his appointment on February 17, 1909, con- 
stituted him both a state and municipal of- 
ficer, and precluded his salary from being 
raised as long as he held the office under 
said appointment In State ex rel. v. Mason, 
153 Mo. loc. dt 43, 44, 54 S. W. loc. dt 529, 
the court in banc, speaking through Judge 
Oantt, in construing a law relating to police 
officers, police detectives, etc., similar in some 
respects to the above sections of R. S. 1899, 
•aid: 

"Wherever the Legislature has the right to 
assume control of a municipal office, it has like- 
wise the right to compel the city to provide for 
defraying the expenses of such office, and while 
it is sometimes difficult to draw the line and dis- 
tinguish whether a given office is of a public or 
state character, or Is simply one to subserve a 
municipal function, it is almost universally con- 
ceded that police boards and metropolitan police 
forces are *tate officers and fall clearly within 
legislative control." 

The conclusion reached In the above case 
was reaffirmed by the court In banc in State 
ex rel. v. Police Commissioners, 184 Mo. loc. 
dt 183, 71 S. W. 215, 88 S. W. 27, cited by 
appellant. 

It Is evident that if a felony should be 
committed in Kansas City, Mo., and there 
were good grounds for believing that the 
perpetrator bad escaped to some distant part 
of the state, the respondents would have been 
Justified In calling upon relator, while he was 
police detective, to locate the criminal and 
assist in bringing him to trial. These of- 
ficers who are acting as detectives may not 
only be sent to various parts of the state, if 
necessary, in the performance of their duty, 
but they are likewise municipal officers, as 
they draw their pay from the city; perform 
services therein; are subject to the control 



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191 SOUTHWESTERN REPORTER 



(Mo. 



of the police board thereof; hold their of- 
flee for a definite time, and their salaries 
are fixed by legislative enactments. 

Without extending the discussion of this 
subject further, we agree with the trial 
court that if relator was appointed and held 
the office of police detective under sections 
6192, 6193, R. S. 1899, while performing the 
services mentioned In petition, then he was 
not entitled to receive but $1,080 peT annum 
for such services. 

[2] II. It appears from the record that 
relator was appointed police detective on 
February 17, 1909, for a period of three years 
from said date, at a salary of $1,080 per 
annum, but it does not appear from the evi- 
dence that he was appointed to said office 
on June 14, 1909, as alleged In petition, or 
at any other date than February 17, 1909, 
although be performed the duties attached 
to said office from February 17, 1909, to 
February 17, 1912. He received during said 
period the salary of $1,080 per annum, except 
from June 14, 1909, to September 15, 1909, 
when he was paid $115 per month, or at the 
rate of $1,380 per year. 

It is claimed by relator that the act of 
1909, p. S19, now known as section 9787, R. 
S. 1909, in terms repealed section 6192, R. S. 
1899, fixing his salary at $1,080 per annum, 
and that as he performed the services sued 
for after the passage of said act of 1909, 
which increased the salary of said office to 
$1,380 per annum, he was entitled to $25 
per month more than he received from Sep- 
tember 15, 1909, to February 17, 1912, 
amounting to $725.88. The act of 1909 (page 
319), supra, deals with the appointment and 
salaries of the police force in cities con- 
taining 150,000 inhabitants and less than 
350,000. Article 9, R S. 1899, of which 
said section 6192 was a part, dealt with the 
same general subject, except that It related 
to cities of 100,000, and less than 300,000 in- 
habitants. The emergency clause in the act 
of 1909, discloses on its face that it was 
dealing with the general subject above men- 
tioned. It reads as follows: 

' 'Emerg enoy. — The existing law being inade- 
quate for the appointment and equipment of a 
sufficient police force in the cities herein men- 
tioned, an emergency exists within the meaning 
of the Constitution, and this act shall take effect 
and be in force from and after its passage. 

"Approved June 14, 1909." 

The court in banc of this state, In the re- 
cent case of Brown v. Marshall, 241 Mo. loc 
clt. 728, 145 S. W. loc dt 815, said: 

"A subsequent act of the Legislature, repeal- 
ing and re-enacting, at the same time, a pre- 
existing statute, is but a continuation of the 
latter, and the law dates from the passage of the 
first statute and not the latter. State ex rel. 
v. Mason, 153 Mo. 23, loc. cit. 58, 59 [54 S. W. 
5241; State ex rel. v. County Court, 53 Mo. 
128, loc cit 129, 130; Smith v. People, 47 
N.Y.330." 

The Revision Commission of 1909, in line 
with the above authorities, at the conclusion 
of section 9787, R. S. 1899, added the fol- 



lowing: "(R. S. 1899, | 6192, amended Laws 
1909, p. 319.)" 

In view of the foregoing authorities, we 
hold that the act of 1909 (page 319), supra, is 
in legal effect, an amendment of section 6192, 
R S. 1899, and the case should be disposed 
of accordingly. 

We then have a case where relator was' ap- 
pointed as police detective on February IT, 
1909, under section 6192 aforesaid, which 
fixed his term at three years and his salary 
at $1,080 per annum, undertaking to recover 
by mandamus $25 per month additional, on 
account of the amendment of said section 
6192 in 1909, which increased the salaries of 
police detectives In said city to $1,380 per 
annum. 

Upon a full consideration of the whole 
case, we have reached the conclusion that re- 
lator, for the services rendered by him, was 
only entitled to recover at the rate of $1,080 
per annum; and, having received all that 
was due him at the above rate, he is not 
entitled to maintain this action. 

The Judgment of the trial court is accord* 
ingly affirmed. 

BROWN, C, concurs. 

PER CURIAM. The foregoing opinion of 
BAILEY, C, is adopted as the opinion of the 
court. All concur. 

On Rehearing. 

PER CURIAM. [>] At the April term, 
1918, an opinion was promulgated affirming 
the Judgment in this cause. A rehearing was 
granted, and the cause redocketed and re- 
submitted at this term. The only ground of 
the motion for rehearing was that the opin- 
ion omitted consideration of the question 
whether relator had such a "term" of office 
as brought him within the purview of section 
8, art 14, of the Constitution of the state, 
which forbids any Increase of the salary of 
certain officers during their terms of office. 
There was no evidence supporting respond* 
ents' plea of estoppel, and the correctness of 
the conclusions reached on questions dis- 
cussed in the former opinion is not now de-' 
nled. The sole question remaining is whether 
relator had a "term" within the meaning of 
the constitutional provision. The solution 
of this question involves a construction of 
sections 6189-6192, R. S. 1899. Section 6189 
provided that every policeman and police of- 
ficer should first serve a probationary term 
of one year. This appellant has done. The 
statute proceeds: 

"Having served one year probationary serv- 
ice to the satisfaction of the board, such police- 
men and police officers may be appointed for an 
additional term of three yean, and shall there- 
after be subject to removal only for cause and 
upon complaint being made, or charges being 
preferred against them, a copy of which 
complaint or charges, setting forth the 
grounds thereof, shall be given to such police- 
man. • • * " 



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O'DAT t. ANNEX REALTY 00. 



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The section then fixed the time and manner 
of trial on such charges and provided for re- 
moval, reprimand, or fine, as the board of 
police commissioners deemed proper in case 
the accused was found guilty. Section 6190 
provided that the chief of police might sus- 
pend policemen and police officers during the 
pendency of charges subject to approval of 
the board at its next meeting. It further 
provided: 

"The board mar at any time discharge police- 
men and police officers for the reason that, In the 
opinion of the board, the police force is larger 
than the interests of the public demand, or that 
there is insufficient money to pay the expenses 
of maintaining the police force as then organis- 
ed, and in such cases it shall not be necessary 
to file any complaint or charges, or permit a 
hearing by the board, of the policemen or police 
officers to be removed; but when the vacancies 
so created shall be filled, the policemen or police 
officers thus removed shall, if they so desire, be 
reappointed to fill such vacancies. 

Section 6191 provided, among other things, 
that: 

"Policemen and police officers whose termte) 
of service have aspired and who, during the 
term of their appointment shall have faithfully 

Serformed their duty, shall, if otherwise quail- 
ed, be preferred by the board in making new 
appointments." 

Section 6192 fixed the maximum number 
of policemen and police officers and their 
salaries, the salary of each of the class of 
which appellant was a member being fixed at 
$1,080 per annum. 

Appellant contends his appointment under 
these sections constituted no fixed term with- 
in the meaning of the constitutional provision 
above mentioned. He argues that the power 
of the board to remove, without a hearing, 
when the number of policemen and officers 
exceeded the number needed or when funds 
were Insufficient to pay the whole force, 
amounted to a right to remove at pleasure, 
and therefore that he bad no 'term of office" 
within the meaning of the Constitution. If 
the power mentioned Is equivalent to one to 
remove at pleasure, appellant's position Is 
sound under the previous decisions of this 
court (State ex rel. v. Gordon, 238' M o. 168, 
142 S. W. 315, Ann. Gas. 1913A, 312), since 
such a power is incompatible with the ex- 
istence of an official "term" within the mean- 
big of the Constitution. The statute ex- 
pressly provided for appointment for a three- 
year term, but qualified this by vesting the 
board with power to remove without hearing 
upon either of the two conditions mentioned ; 
L e.: (1) When the number of police officers 
or policemen exceeded the number needed; 
or (2) when there were insufficient funds to 
pay the force as constituted. We do not 
think this equivalent to a power to remove 
at pleasure. Rather the power was given to 
remove for cause without a hearing. 

"Constitutional or statutory provisions which 
•How a removal only for cause, or for cause and 
after a notice and a hearing, do not apply to a 
dismissal of an officer, for some reason other 
than his own act or default, and where there is 



no intent to appoint another In his place. Thus, 
where a statute provides for notice and a hear- 
ing before removal, an officer may be discharged 
without either, where the discharge is made be- 
cause the services he renders are no longer need- 
ed, or no funds are provided with which to pay 
him. * * * The same rule holds where a dis- 
missal is made for the purpose of reducing ex- 
penses by diminishing the force." Throop on 
Public Officers, § 3477 

Thus It appears relator's term would have 
been subject to termination without a hear- 
ing for either of the reasons mentioned in 
the statute even had the statute been silent 
on the subject, unless, of course, the statute 
excluded removal on these grounds, which is- 
not this case. To bold that these grounds of 
removal, exercisable without statutory au- 
thority on the ground that such removal is 
rather an abrogation of the office, transform 
relator's term Into one held at the pleasure 
of the appointing power would at once re- 
move most officers from the field covered by 
the constitutional prohibition against in- 
crease In salary during their term by convert- 
ing them into mere placeholders. It has not, 
so far as we can find, been held that the rule 
quoted above affects in any way the appli- 
cability of the constitutional provision. It is 
urged, in addition, that under the statute, 
after the board has discharged policemen be- 
cause of lack of need for their services or 
lack of funds, If they refill the positions thus 
vacated the discharged policemen are entitled 
to the appointments, if they desire them, and 
that this right they might enforce by man- 
damus, and therefore their status in the in- 
terim is one merely of suspension, and their 
term is thus secured to them. In view of 
what has been said above, we do not deem 
it necessary to discuss this question. Relator 
was appointed to a three-year term. He serv- 
ed it in full. He could have been removed, 
for matters personal to him, solely on notice, 
charges, and a hearing. The power to remove 
without a hearing was only upon conditions 
upon which he might have been removed had 
the statutes not expressly mentioned them. 
They are conditions upon which most officers 
hold their positions. They are not such as to 
convert a term into a holding at pleasure. 
Relator had an official term within the mean- 
ing of the Constitution, and the Judgment 
must be affirmed. 



O'DAT et al. v. ANNEX REALTY CO. et aL 
(No. 18177.) 

(Supreme Court of Missouri, Division No. 1. 
Dec. 20, 1916. Rehearing Denied Jan. 2, 
1917.) 

1. Evioewcx *s>271(18)— Self-Sebviho Dec- 
laration. 

In a suit to enforce a constructive trust 
based on a parol agreement with defendants' 
predecessor in title, a private diary entry of such 
predecessor setting forth a contract with plain- 
tiff's predecessor more favorable to defendants 



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101 SOUTHWESTERN REPORTER 



(Mo. 



than the one alleged, was inadmissible, being a 
mere self-serving declaration. 

[Ed. Note.— For other cases, see Evidence, 
Gent Dig. | 1006; Dee. Die. «=271(18).] 

2. Tbubts <s=*96— Oonbtructtvx Trust. 

Execution of a quitclaim deed by plain tiff*! 
predecessor to defendants' predecessor in reli- 
ance upon a parol agreement that defendants' 
predecessor would sell the property and ac- 
count for the proceeds established a constructive 
trust. 

f Ed. Note.— For other cases, see Trusts, Cent. 
Dig. | 148; Dec. Dig. «8=>96J 

8. Trusts <8=»92%— Constructive Trusts— 
Statute or Frauds. 
A constructive trust, arising from a parol 
agreement to sell and account for property quit- 
claimed by another, is not within the statute of 
frauds. 

[Ed. Note.— For other cases, see Trusts, Cent 
Dig. {141; Dec Dig. «=>»2%.] - 

4. Trusts *=»96— Constructive Trust. 

Where a grantee takes possession of real 
estate, under a deed absolute in its terms, under 
a parol agreement whereby he undertakes to 
hold the property for some legitimate purpose, 
or to Bell and account for the proceeds, or to re- 
convey it to the grantor, his refusal to perform 
his promise amounts to a constructive fraud, and 
he will be held to be a trustee for the grantor 
or his heirs. 

[Ed. Note.— For other cases, see Trusts, Cent 
Dig. f 148; Dec Dig. <£=>96.] 

5. Mortgages <8=> 369(5) — Laches — Delat m 
Setting Abide Illegal Foreclosure. 

Laches is no bar to a suit in equity to set 
aside an illegal foreclosure of a deed of trust 
made by the trustee, who was also at the time 
the beneficiary therein, where no injury would 
result to those claiming under such foreclosure. 

[Ed. Note— For other cases, see Mortgages, 
Cent Dig. | 1095; Dec. Dig. <8=»369(5).} 

6. Trusts <8=365(5)— Laches— Delat nc Es- 
tablishing Constructive Trust. 

Delay in bringing suit to establish a con- 
structive trust held not laches, although the con- 
structive trustee had died, where his successors 
were not innocent purchasers, but had been ac- 
tive in the transaction giving rise to the trust 
[Ed. Note— For other cases, see Trusts, Cent 
Dig. U 570, 673; Dec Dig. «=»365(5).] 

Appeal from St Louis Circuit Court; 
Eugene McQulllin, Judge. 

Suit by Mrs. William J. O'Day against the 
Annex Realty Company and another. Mrs. 
O'Day died pendente lite, and the cause 
was revived in the names of her administra- 
tor, William 3. O'Day, and her heirs at law. 
From judgment for defendants, plaintiffs 
appeal. Reversed and remanded. 

Mrs. Catherine O'Day, on September 11, 
1907, Instituted, in the circuit court afore- 
said, a proceeding in equity to enforce a 
constructive trust in her favor as to nine par- 
cels of real estate situate In St Louis, Mo., 
described in the petition; to compel the de- 
fendant Annex Realty Company, to render 
an accounting as to the proceeds of seven 
pieces of said property sold by It and to 
divest said defendant of the title to the two 
remaining pieces, and to vest the same in 
plaintiff. The petition concludes with a 
prayer "for such further orders, decrees, and 



judgments as may be just and equitable In 
view of the premises." Mrs. O'Day was 75 
years of age when the case was tried, and 
died during the pendency of this litigation. 
Her death was suggested, and the cause re- 
vived in the names of her administrator and 
heirs at law. The amended petition, on 
which the case was tried, alleges, in sub- 
stance, that said Catherine O'Day, on July 
1, 1890, was Indebted to the defendant Annex 
Realty Company in the sum of $18,000, and. 
about said date delivered to Will J. Howard 
her note for $26,000 and ten interest notes 
for $780 each, all secured by deed of trust 
of same date on six of the parcels of land 
aforesaid; that Howard was in the employ 
of the Annex Realty Company, and immedi- 
ately indorsed and delivered the notes to It; 
that M. B. O'Reilly was the trustee named in 
said deed of trust as well as president and 
shareholder in each of the defendant cor- 
porations; that M. B. O'Reilly and the de- 
fendants were, at all the times mentioned in 
petition, the agents of plaintiff; that pursu- 
ant to the terms of said deed of trust the 
trustee aforesaid advertised the real estate 
described therein for sale on May 27, 1898; 
that on May 25, 1898, plaintiff and defendant 
Annex Realty Company entered into an 
agreement whereby plaintiff was to execute 
a quitclaim deed to said defendant conveying 
the real estate described in said deed of 
trust and also certain other real estate in 
the city of St Louis aforesaid, and it was 
agreed that the defendant Annex Realty 
Company should hold said real estate for the 
benefit of plaintiff and as her agent and trus- 
tee ; that said defendant did, at the trustee's 
sale, accept a conveyance of the real estate 
advertised for sale as plaintiff's agent and 
trustee; that plaintiff executed a quitclaim 
deed, as agreed, and the defendant Annex 
Realty Company bid In the real estate at the 
sale on May 27, 1898; that said defendant 
for a reasonable compensation to be paid by 
plaintiff, agreed with the latter to hold an 
of the real estate aforesaid, as agent and 
trustee, for the benefit of plaintiff, to col- 
lect the rents thereof, and as soon as possible, 
secure a purchaser therefor, sell the same, 
and apply the proceeds and rent to the In- 
debtedness of $18,000, and to the payment of 
such other old matters of credit in favor of 
the defendant Annex Realty Company that 
might be just and reasonable, and the bal- 
ance to be turned over to plaintiff; that 
relying on said agreement plaintiff made 
no effort to protect her Interests at said sale, 
but allowed the real estate to be bought by 
the Annex Realty Company colorably, but not 
actually, for $3,700; that the Annex Realty 
Company, since May 26, 1808, sold a part of 
said real estate for $28,750; that in pursu- 
ance of said agreement, defendant has paid 
off plaintiff's indebtedness of $18,000, but has 
failed to account for the balance; that on 



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O'DAY v. ANNEX REALTY OO. 



43 



or about September 1, 1902, the Annex Real- 
ty Company executed and delivered to the M. 
B. O'Reilly Realty ft Investment Company 
a deed to said lots In city block 1843; that 
said conveyance was colorable only, but not 
for value, and was made for the purpose of 
cheating and defrauding plaintiff; that de- 
fendant Annex Realty Company has been, 
and Is now, collecting rents for said lots in 
said city block 1843, and in city block 206 
south, conveyed in the quitclaim deed afore- 
said, but not since sold by the defendant 
The petition prays for an accounting, that 
the quitclaim deed of May 26, 1808, be set 
aside as to lots In city block 1843, and city 
block 206 south, that defendants be divested 
of the title thereto, and that the same be 
vested in the plaintiff. The answers were 
general denials. Hon. Henry W. Allen was 
appointed referee, and made the following 
announcement: 

There are two issues raised by the petition, 
and with consent of counsel I have decided to 
limit the testimony preliminarily to the issue of 
whether or not a trust exists in the present 
cause. When all the evidence on that issue is in, 
I will render a decision on that point, and. if 
the finding is that a trust exists, we will then 
proceed with the evidence of an accounting. If 
the finding is that no trust exists, I will report 
that to the court, and that report, of course, 
will be subject to the revision by the court on 
that issue. If that is satisfactory, we will pro- 
ceed with the case in that way." 

The respective counsel agreed to above sug- 
gestion of the referee. 

Evidence before Referee. It appears from 
the evidence taken before the referee that 
Mrs. Catherine O'Day owned nine separate 
parcels of real estate In St Louis, Mo., de- 
scribed In the amended petition. On July 1, 
1890, she executed a deed of trust on six 
pieces of above real estate to M. B. O'Reilly, 
as trustee, to secure the alleged considera- 
tion of 526,000, due in 5 years from above 
date, and drawing Interest after maturity at 
the rate of 10 per cent, per annum, payable 
semiannually; also to secure ten Interest 
notes of $780 each, of same date, due in 6, 12, 
18, 24, 30, 36, 42, 48, 64, and 60 months, re- 
spectively, after the date aforesaid, and each 
of said Interest notes of $780 to draw Interest 
from their, maturity at 10 per cent, per an- 
num, payable semiannually. The payee in 
said principal note, and In each of the Inter- 
est notes aforesaid, is Will J. Howard, who 
was a clerk In the office of M. B. O'Reilly, 
and a mere figurehead. He Immediately as- 
signed the notes to O'Reilly. It appears 
from the record, therefore, that M. B. O'Reil- 
ly was both the benefloiary and trustee in 
the above deed of trust 

Defendants, upon the Cross-examination of 
William J. O'Day, had him testify that his 
mother, Catherine O'Day, claimed she only 
owed about $18,000 on the deed of trust As 
the Interest notes were $780, for every 6 
months, or $1,660 per annum, it would indi- 
cate that the Interest was calculated for the 



6 years at 6 per cent per annum, payable 
semiannually. 

It appears from the undisputed testimony 
that M. B. O'Reilly had been having business 
transactions with Catherine O'Day for many 
years before 1898, and at intervals since 
1866; that he loaned her money; collected 
her rents, and transacted other business 
with her; that she paid him In money, from 
1893 to 1897, as shown by receipts introduced 
in evidence, some 16 different amounts, ag- 
gregating $8,623.25. The evidence tends to 
show that Catherine O'Day had implicit con- 
fidence In M. B. O'Reilly, and depended on 
the latter to keep a correct statement of their 
business transactions, as there is nothing to 
Indicate that she kept any record of same, 
except as shown by the promiscuous receipts 
found by her son with her papers, and which 
Indicated the above payments by her to M. B. 
O'Reilly. The evidence further shows that 
the Annex Realty Company had also been 
acting as the agent of Mrs. O'Day In the col- 
lection of rents, etc 

It appears from the record that M. B. 
O'Reilly, who died In 1907, was the president 
of the M. B. O'Reilly Realty ft Investment 
Company in 1898, and that he and two of his 
sons were the stockholders of said company. 
The incorporators of the Annex Realty Com- 
pany were Eugene D. O'Reilly, who had 246 
shares, Gerald B. O'Reilly, 4 shares, and 
James H. Scholten, 1 share Its capital stock 
was 260 shares of the par value of $100 each. 
The capital stock was paid for by M. B. 
O'Reilly In real estate, and given by him to 
bis sons above named. In 1898, and prior 
thereto, both defendants and M. B. O'Reilly 
had an office together at 723 Chestnut street 
St Louis, Mo. 

M. B. O'Reilly, while the owner of above 
deed of trust and the notes described therein, 
advertised, as trustee of said deed of trust, 
the property of Catherine O'Day for sale, on 
May 27, 1808. On May 26, 1898, Catherine 
O'Day, her son, Wm. J. O'Day and J. O. In- 
galls, went to the office of M. B. O'Reilly, and 
a conversation took place at that time In 
reference to the sale of the O'Day property 
under said deed of trust Ingalls was absent 
from the state at the time of trial, and did 
not testify In the case. Mrs. O'Day was 
asked to state what the conversation was be- 
tween herself and O'Reilly on above occa- 
sion, but as M. B. O'Reilly was then dead, 
the referee refused to permit her to testify 
In relation to that matter. Complaint is 
made In this court In regard to above ruling 
of referee. Wm. X O'Day, testified as to 
what occurred In his presence between M B. 
O'Reilly, his mother and himself, on May 
26, 1898, as follows: 

"A. He asked me if I knew the property was 

foing to be sold as advertised the next day: 
told him I was aware of that and he says, 'I 
have a quitclaim deed here that I wish your 
mother to sign.' He handed over the deed to 
me, and asked me to read It; I went on and 
read it and after I had completed it I told 



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4£ 191 S0UTHWES1 

him that there was several pieces of property 
in that quitclaim deed that were not advertised. 
'Oh, weir he said, 'if I permit that property— 
if you permit that property to be sold at the 
courthouse and it doesn't realize a sum suffi- 
cient to pay off your mother's indebtedness I 
will sue her and recover the balance, but if 
she signs this quitclaim deed, including these 
several pieces of property, I will hold them for 
her, and dispose of them to purchasers from 
time to time as they come in, in order to sell 
it off and collect the rents, and after her in- 
debtedness was paid I will return the balance 
of moneys and property to her.' I told my 
mother what he said, and she says,; 'Well, all 
right. I will sign it under those conditions.' 
She says: 'Do you think it is all right?' I 
says, 'I think so,' and she then proceeded to 
sign the quitclaim deed. After doing so, Mr. 
O'Reilly asked me to witness it; I witnessed it; 
he called a notary public that was located in 
the building, and he took her acknowledgment, 
and he led her to believe all the way through— 

"Mr. McLaran: I object to that, if the 
court please. 

"The Referee: That objection will be sus- 
tained. 

"Q. What did he say? State what he said. 
A. That about closed the transaction as far as 
I know with referense to the signing of it; 
I stated all he said in the previous part of the 
answer. Q. Now, did your mother get this 
$10,000 mentioned in the quitclaim deed at that 
time? A. She did not Q. Nor at any other 
time? A. Nor at any other time since. Q. 
Well, did O'Reilly purchase this property at 
the sale the following day? A. He did. Q. 
When you say O'Reilly purchased it, whom do 
you mean? A. The Annex Realty Company. 
Q. The Annex Realty Company. Do you know 
what he paid for this property, or what he bid 
it in for? A. Thirty-seven hundred dollars." 

This witness testified further on above mat- 
ter as follows: 

"Q. Now, what was said, if anything, by 
O'Reilly, as to whether or not he would bid 
in this property advertised, the next day? A. 
He said he would bid in the property at the 
time of the sale and protect her interests by 
doing so. And he would find purchasers for 
the property and apply the proceeds of the 
sales to my mother's account After the ac- 
count was balanced, any sums left over, or any 
property left over, he would return to her. 
That was the conversation which we had at 
the time." 

Witness continued bis testimony on this 
subject, as follows: 

"Q. Well, what was it of that kind that was 
said by Mr. O'Reilly? A. He said that if my 
mother permitted that property to be sold at 
the courthouse, it would not realize probably 
enough money to pay off the indebtedness; 
therefore he would go down and bid it in and 
ask other bidders to step aside. He would 
bid the property in, and find purchasers for her 
from time to time, collect her rents on that 
property, apply all the proceeds to the debt, 
and when the debt was wiped out a statement 
would be rendered what was due her, if' any- 
thing was left over in property or anything. 
That was the conversation we had that day. 
He didn't say anything about an enormous debt 
or anything else to me." 

Witness testified that he was present dur- 
ing the whole conversation from beginning to 
end; thai Gerald O'Reilly stepped into the 
room for an instant, calted to his father, 
laid a paper on the desk, and walked right 
out again; that he was not in the room a 
half minute, and left as. toon a* he laid the 
paper down. 



BSBN REPORTER (Mo. 

Gerald B. O'Reilly testified that his father 
kept a daily record or diary of what occurred 
each day. Witness fonnd the diary in the 
vault of the cellar, among all the diaries 
from away back to 1870. The book contain- 
ing this diary was not offered in evidence, 
but the following occurred: 

"Mr. McLaran: I am going to let the court 
look at it. and then I am going to read it into 
the record. 

"Q. Please read the entry in this diary under 
date Thursday, twenty-sixth of May.' A. 
(reading) Thursday, the twenty-sixth of. May, 
1898. On this day I agree with Catherine 
O'Day, in the presence of Ingalls, her son, and 
Gerald B. O'Reilly, to give her one year. to re- 
deem the Cass avenue property for twelve 
thousand dollars cash, she to pay, in addition 
to said twelve thousand dollars, all taxes paid 
by me and all repairs paid by me, I to give 
her credit for the rents collected, and she to 
pay me interest on said twelve thousand dol- 
lars, and on all sums paid by me.' Below it 
says: 

" 'Amount as above set forth.... $12,000.00 
Taxes paid, 30th June, '98. . . . 1,168.88 

Taxes, interest on same 

Repairs paid by 0'R , 

Interest on $12,000.00 to the date 

of purchase 

Interest on sums for repairs.-. . . ; ' " 

Said page, under date of Thursday, the 
26th of May, 1898, was offered in evidence. 

"Q. Now, after looking at that book, and in- 
dependent of the book, what knowledge or in* 
formation have you personally regarding any 
agreement that M. B. O'Reilly made with Mrs. 
O'Day regarding any of this property at that 
time? A. Nothing outside of this agreement. 
Q. Well, have you any recollection independent 
of that agreement, if you hadn't seen it, but, 
having seen it have you now any independent 
recollection of any agreement made between 
M. B. O'Reilly and Mrs. O'Day? A. Mrs. 
O'Day and her son Will, I think his name is, 
and a Mr. Ingalls, a real estate agent, came to 
the office a few days before the foreclosure of 
the property, and Mrs. O'Day wanted to save 
the Cass avenue and Sheridan from the sale, 
and Mr. O'Reilly made that agreement at their 
instance that she would give a quitclaim deed 
to all the property, including other properties 
which were not in the large deed of trust but 
which were incumbered by other deeds of trust 
Q. Was thiB Cass avenue property advertised 
for sale at that time? A. It was advertised 
along with the others in the $26,000 deed of 
trust Q. But I understand from you it was 
withdrawn on the day of sale and did not go 
under that sale? A. It was not sold." 

Witness further testified in regard to this 
matter, as follows: 

"Q. When Mrs. O'Day and Mr. O'Day were 
present there in the office on the 26th day of 
May, 1898, how long were you in the office 
where they were? A. Mr. O'Reilly called me 
in to witneas that agreement Q. What agree- 
ment? A. Here, in the book; read it to all the 
parties. Q. Did you eee him enter this in 
the book? A. I did; yes; sir. Q. Didn't you 
testify a while ago you did not? A. I did not; 
I don t think I did; we can go back to my tes- 
timony and see. Q. You didn't sign this agree- 
ment did you? A. I did not Q. Mrs. O'Day 
didn't sign it? A. It is not signed by her. Q. 
Mr. O'Day didn't sign it?. A. His signature is 
not there. Q. Did you ask him to reduce it to 
writing then? A. I did not; Mr. Ingalls asked 
him to reduce it to writing, or Mr. O'Day. Q. 
Did he ask him to write it up in the presence 
of Mrs. O'Day? A. He did; he asked him to 
write it up in the presence Of Mr. O'Day, Mr. 
Ingalls, and myself." 



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Mo) 

Win. It. Haltlnner testified Out Mrs. O'Day 
told him once that M. .B. O'Reilly promised 
her if sbe would come In with $12,000 or 
$15,000, he would give her that property 
back on Cass avenue; that she had such an 
agreement She said she went down there, 
and she could not get any satisfaction from 
him. 

Mrs. Delia O'Day testified that about No- 
vember, 1888, she went with Catherine 
O'Day, to the office of M. B. O'Reilly. She 
then testified to two separate conversations 
there as follows: 

"A. Mrs. O'Day asked Mr. O'Reilly if he 
had sold any property, and if he had a state- 
ment to give her. He said he had sold some 
property, but not enough to sire her a state- 
ment, and that he would let her know later on. 
Q. Did you call in company with Mrs. O'Day, 
SA, after that? A. Yes, dr. Q. At Mr. 
CBeilly's office? A Yes, about 6 or 7 months 
afterwards. Q. Was there a conversation there 
between Mrs. O'Day, Sr., and Mr. O'Reilly? A. 
Yes, sir; the same thing; she asked him if 
he had sold any more property, if he was ready 
to give her a statement, and he said be hadn't 
■old enough yet to render her a statement; 
that he would let her know later, write her a 
letter; that was the last time I was there with 
her, just those two times." 

On May 25, 1898, pursuant to the conver- 
sation between Mrs. O'Day and O'Reilly, the 
former executed and delivered a quitclaim 
deed to the Annex Realty Company, for the 
expressed consideration of $10,000, for the 
nine separate and distinct pieces of real es- 
tate described In petition, and tiw of which 
were described in said deed of trust The 
quitclaim deed was delivered to Gerald B. 
O'Reilly for and on behalf of the Annex 
Realty Company. Neither of the defendants, 
or any one else, ever paid Mrs. O'Day, any 
part of the $10,000, named as the considera- 
tion In said quitclaim deed, nor did she ever 
receive any consideration for either of the 
three pieces of real estate contained In said 
quitclaim deed, and which were not includ- 
ed In said deed of trust. The deed of trust 
and notes described therein, were owned by 
M. B. O'Reilly when the quitclaim deed was 
executed, and when the deed of trust was 
foreclosed the following day. 

Mrs. O'Day was not present at the foreclo- 
sure sale on May 27, 1898, and neither was 
her son, Wm. J. O'Day, or any other person 
present on said occasion to represent her, ex- 
cept M. B. O'Reilly and Gerald B. O'Reilly, 
representing the Annex Realty Company al- 
so. The five pieces of property described in 
the deed of trust were sold for the allege* 
consideration of $3,700, but no part of same 
was shown to have been paid. The five 
tracts supra, were bought In by Gerald B. 
O'BeiUj, in behalf of the Annex Realty Com- 
pany, and a deed was made for same by M. 
B. O'Reilly, as trustee. 

The O'Day deed of trust executed July 1, 
1890, and the notes described therein, were 
delivered to the Annex Realty Company, and 
were produced at the trial by Gerald B. 
O'Reilly. , At the hearing .before the referee, 



45 

the following admission was made by coun- 
sel for defendants: 

"It is admitted that the defendant Annex 
Realty Company has sold some of the prop- 
erty mentioned in the quitclaim deed in evi- 
dence and received the proceeds of the sales." 

Gerald B. O'Reilly testified that no notes 
were canceled In consideration of said quit- 
claim deed. He further testified: 

"Q. Well, what did you give her for this quit- 
claim deed? A. Didn't give her anything. Q. 
Did you give anything to Mr. O'Reilly? A 
We paid Mr. O'Reilly nothing, but we assumed 
the obligations." 

He further testified: 

"Q. Well, in procuring this quitclaim deed, 
wasn't he (M. B. O'Reilly) acting for the An- 
nex Realty Company? A. He was acting for 
himself; afterwards he gave it to die Annex 
Realty Company as a present Q. Who did? 
A M. B. O'Reilly. Q. Gave what as a present? 
A. Whatever equity was in those properties. 
* * • Q. Books of account; very well. A. 
We executed a deed of. trust on the Can avenue 
and Sheridan for $10,000 to him (M. B. O'Reil- 
ly) : we executed a deed of trust on the Kings- 
highway and Fountain for $10,000 to him; we 
assumed $3,000 on 128 South Eleventh street, 
and executed a second deed of trust for $2,000. 
Q. Executed what? A. A second deed of trust 
for $2,000, on the same property, 128 South 
Eleventh, making $5,000 in all on that particu- 
lar property. We made the following sales: To 
Me. Thuner, $3,000; to Mr. Thurlby, $1,200, and 
G. B. O'Reilly. $2,250; for 4401 and 3 St. Fer- 
dinand, $2,450; 4407 Garfield, $1,250 ; 4409 
Garfield, $1,250, that is, $1,250 you know; Gar- 
field and Newstead, $2,000— making the total of 
$89,000. The difference of a few dollars, I don't 
know how that is accounted for. Q. These differ- 
ent conveyances or deeds of trust were all on 
Mrs. O'Day's property? A They were not on 
Mrs. O'Day's property; they were on property 
that belonged to her at one time. Q. They were 
all on this property mentioned in the deed of 
trust? A. They were put on the property men- 
tioned in the deed, the quitclaim deed." 

He testified that the Annex Realty Com- 
pany was to pay his father $88,90526 for 
all the properties in the quitclaim teed. He 
further testified: 

"Q. So that every dollar given to M. B. 
O'Reilly and every note secured by a deed of 
trust given to M. B. O'Reilly was on the proper- 
ty mentioned in the quitclaim deed dated May 
26, 1898? A Correct" 

Witness says the Annex Realty Company 
took possession of the property described in 
the quitclaim deed, and has acted as owner 
of It ever since. Gerald B. O'Reilly was the 
only person connected with the Annex Realty 
Company who looked after Its affairs. The 
Cass avenue property was not sold under 
the foreclosure of the O'Day deed of trust 
although It was advertised for sale. 

Gerald B. O'Reilly testified that all of the 
property contained In said quitclaim deed 
was of the value of about $20,000. On the 
other hand, Wm, J. O'Day testified that the 
reasonable value of all the property describ- 
ed in said deed In May, 1898, 'was from $80,- 
000 to $85,000. 

The foregoing covers substantially the 
testimony taken by the referee and reported 
to the court 

' ' The referee admitted in evidence the alleg- 



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46 



191 SOUTHWESTERN REPORTER 



ed diary of M. B. O'Reilly, heretofore men- 
tioned, found the Issues for defendants, and 
recommended that Judgment be entered ac- 
cordingly. Exceptions were duly filed to 
said report, which were overruled by the 
trial court, and Judgment entered for de- 
fendants. Plaintiff filed a motion for a new 
trial, which was overruled, and the cause 
duly appealed to this court 

James J. ODonohoe and Henry E. Haas, 
both of St- Louis, for appellants. Robert L. 
McLaran and Edmond A. B. Garesche, both 
of St Louis, for respondents. 

RAILEY, O. (after stating the facts as 
above). I. It is contended by appellant that 
the referee and trial court committed error 
in refusing to permit Catherine O'Day to 
testify as to a conversation between herself 
and M. B. O'Reilly, which occurred at the 
office of the latter on May 26, 1898, in re- 
spect to the alleged trust agreement mention- 
ed in petition. It is conceded that M. B. 
O'Reilly was dead, when Mrs. O'Day was 
offered as a witness, in regard to above mat- 
ter. The referee ruled that she was an in- 
competent witness as to said conversation. 
Mrs. O'Day having died since the trial below 
and without having testified, in respect to 
foregoing matter, so that her testimony 
could be preserved, it becomes unnecessary 
for us to consider or pass upon the ruling 
of the referee and trial court in excluding 
her testimony aforesaid. 

(1) II. It is insisted by appellants that the 
referee committed error in the admission of 
M. B. O'Reilly's diary, which reads as fol- 
lows: 

"Thursday, the twenty-sixth of May, 189S. 
On this day I agree with Catherine O'Day, in 
the presence of Ingalls, her son, and Gerald B. 
O'Reilly, to give her one year to redeem the Cass 
avenue property for twelve thousand dollars 
cash, she to pay, in addition to said twelve thou- 
sand dollars, all taxes paid by me and all repairs 
paid by me, I to give her credit for the rents 
collected, and she to pay me interest on said 
twelve thousand dollars, and on all sums paid 
by me." 

Below it says: 

"Amount as above set forth $12,000.00 

Taxes paid, 30th June '98 L168.88" 

Said page, under date of Thursday, the 
26th of May, 1898, was offered in evidence. 

Gerald B. O'Reilly testified that he found 
the book containing the above entry in a 
vault of his father's cellar, among other 
diaries running back to 1870. He said this 
was a private dally diary kept by his father, 
and is in the handwriting of the latter. Af- 
ter reading into the record the above diary, 
witness testified as follows: 

"Now, after looking at that book, and inde- 
pendent of the book, what knowledge or informa- 
tion have you personally regarding any agree- 
ment that M. B. made with Mrs. O'Day regard- 
ing any of this property at that time? A. Noth- 
ing outtidt a/ tkU amtmmU- (Italics arc 
ours.) 



Yet he proceeded at once to give his ver- 
sion of what occurred, and on re-examina- 
tion said he was present when the memor- 
andum was made. He is directly contradict- 
ed in respect to his presence, on above occa- 
sion, by Wm. J. O'Day, who testified that 
no such agreement was made as that men- 
tioned in the diary, and that he never saw 
the diary until it was produced before the 
referee. 

M. B. O'Reilly was a business man, and 
president of the M. B. O'Reilly Realty ft In- 
vestment Company. It is conceded that the 
latter, as well as the Annex Realty Com- 
pany, kept a set of books, which were called 
for by plaintiff, and their production refused 
by counsel for defendants, unless ordered by 
the court to produce same. The proceedings 
on May 26, 1898, when the quitclaim deed 
was executed, occurred in the office of de- 
fendants and M. B. O'Reilly. The failure 
to produce the books, when a business trans- 
action of this kind would naturally be ex- 
pected to appear therein, and the produc- 
tion of one page of an alleged diary in their 
stead, does not impress us as showing a suf- 
ficient foundation for admitting this class of 
testimony, even if It were otherwise com- 
petent The page of the diary offered in evi- 
dence destroys its integrity as a true record 
of daily occurrences, as it shows upon its 
face, the following: Taxes paid, 30th June, 
'96, $1,168.88"— although the alleged memo- 
randum is dated May 26, 1898. 

Aside, however, from the foregoing potent 
objections to a single page of this diary be- 
ing considered as competent evidence we 
find that the contents of same does not pur- 
port to be an admission contrary to the in- 
terests of defendants and M. B. O'Reilly. 
On the contrary, this diary was offered for 
the express purpose of overturning the con- 
structive trust sought to be established by 
plaintiff on May 26, 1898, when the quitclaim 
deed was delivered. It was also offered to 
show that an entirely different agreement 
had been made from that claimed by plalu- 
tiff, and which was more favorable in its 
terms to O'Reilly and the defendants. The 
cases relied upon by respondents hold that 
the admissions of a party, against his inter- 
est when made, may, tinder certain circum- 
stances, be given in evidence, but they have 
no application to the facts of this case, for 
the reasons aforesaid. On the contrary, the 
page of diary offered in evidence must be 
classed as a self-serving declaration of M. 
B. O'Reilly and inadmissible for any pur- 
pose. Laclede Land ft Improvement Co. v. 
Goodno, 181 S. W. loc clt 413; Elliott v. 
Sheppard, 179 Mo. loc dt 390, 78 S. W. 627; 
WllcoxBon v. Darr, 139 Mo loc. clt 673, 41 
S. W. 227; Coomba v. Coombs, 86 Mo. loc 
dt 178 ; Manlon Blacksmith Co. v. Carreras, 
19 Mo. App. 162; Gregory v. Jones, 101 Ma 
App. 270, 73 S. W. 899. 

Mrs. O'Day was excluded as a witness, at 
the instance of defendants, in respect to the 



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O'DAY ANNEX RKALTY CO. 



47 



alleged trust agreement, on account of the 
death of M. B. O'Reilly. The self-serving 
declarations of O'Reilly, upon the plainest 
principles of justice, should not be received 
as evidence, when plaintiff's testimony upon 
the same subject was excluded, at the in- 
stance of defendants, because of O'Reilly's 
death. 

The diary offered in evidence was im- 
properly admitted, and should have been ex- 
cluded. 

IIL This brings us to the main issue in 
the case, as to the legal effect of the agree- 
ment between the. parties in interest at the 
time the quitclaim deed was delivered on 
May 26, 1888. We have read and re-read 
the record carefully, and have heretofore set 
out substantially the testimony taken by the 
referee and reported to the court The evi- 
dence tends to show that Mrs. O'Day was a 
woman with but little business experience, 
and that she reposed confidence in the An- 
nex Realty Company and M. B. O'Reilly as 
her agents. The latter, while the owner of 
the fund loaned in July, 1890, had taken a 
deed of trust on six pieces of real estate be- 
longing to plaintiff, to secure, according to 
hex contention, $18,000, and made himself 
t rut tee in said instrument. He named a 
mere figurehead as the beneficiary thereof, 
who immediately indorsed the notes to O'- 
Reilly. The action of the latter, in respect 
to foregoing matter, was a plain violation 
of his legal duty, even if he had not been 
the trusted agent of plaintiff. 

On May 28, 1898, Mrs. O'Day, her son Wil- 
liam, and one Ingalls, appeared at the of- 
fice of defendants and M. B. O'Reilly, to talk 
over the prospective foreclosure of Bald deed 
of trust on the six pieces of her real estate. 
It is probable that Mrs. O'Day came to the 
office of O'Reilly at the Invitation of the 
latter, as the quitclaim deed read in evidence 
was already prepared, and submitted to her 
soon after her arrival. It is evident that 
defendants and O'Reilly were anxious to 
secure the title to the three pieces of real 
estate owned by Mrs. O'Day, which were 
not included In said deed of trust. They 
must also have known that a foreclosure of 
the deed of trust by O'Reilly, who was trus- 
tee as well as owner of the debt secured, 
could be set aside in a court of equity should 
application be made for that purpose. 

We find from the evidence that at said 
time both O'Reilly and the Annex Realty 
Company were acting as agents for plaintiff 
in the collection of her rents from the prop- 
erty aforesaid, and that she reposed in them 
confidence, and believed they would treat 
her fairly; that defendants and O'Reilly ob- 
tained from plaintiff, under the circumstanc- 
es aforesaid, a quitclaim deed of said date 
for nine pieces of her real estate, without 
paying her a dollar therefor, although the 
consideration mentioned therein was $10,000. 

We find from a consideration of all the 
tacts before us, that the parol agreement, as 



testified to by Win. J. O'Day, is fully sus- 
tained by the testimony In the case. We are 
satisfied from the evidence taken as a whole 
that defendants and M B. O'Reilly, on May 
26, 1898, in consideration of the execution 
and delivery to the Annex Realty Company 
of said quitclaim deed conveying said nine 
pieces of real estate described in petition, 
agreed with plaintiff to buy in said six pieces 
of property advertised for sale, for her use 
and benefit; that they would find purchasers 
therefor, collect the rents on her property, 
apply all the proceeds to her Indebtedness, 
and when the latter had been paid off, they 
would render her a statement of the trans- 
actions, and pay over to her the balance, 
if any, in their hands, and also to convey 
back to her such real estate, if any, remain- 
ing In their hands, after her Indebtedness 
aforesaid had been paid. In other words, 
they were to find purchasers for said real 
estate, sell the same, keep a record of the 
proceeds of sales and the rents collected; 
apply the same on plaintiff's indebtedness to 
them, until it was extinguished. They were 
to render an account to her of their trans- 
actions, and if there was any money or real 
estate left after her debts were paid as 
aforesaid, they were to account for such pro- 
ceeds and convey to her the real estate re- 
maining unsold. 

We find that no part of the agreement 
aforesaid was reduced to writing; that no 
part of the consideration mentioned in said 
quitclaim deed was ever paid ; that plaintiff 
relied upon said parol agreement, and, re- 
posing confidence in said defendants and 
O'Reilly, did not attend said foreclosure sale, 
and was unrepresented at said sale by any 
other person, except the parties aforesaid. 

On the facts thus found, the question aris- 
es as to whether the parol agreement afore- 
said Is void under the statute of frauds. 

[2] TV. Having found that the parol agree- 
ment was entered into between the parties 
aforesaid, on May 26, 1898, it follows that 
a constructive trust arose in favor of plain- 
tiff by implication of law, and that she is 
entitled to have said defendants, who are 
not innocent purchasers, but parties to the 
agreement, declared to be trustees in inritum 
and to require them to render unto her an 
account of their trusteeship. Phillips v. Jack- 
son, 240 Mo. lot dt 8S6, 144 8. W. 112, and 
cases cited; Bunel and Heffernan v. Nester, 
203 Ma 429, 101 8. W. 69; Harrison ▼. Cra- 
ven, 188 Mo. loc dt 608-610, 87 8. W. 962; 
Phillips v. Hardenburg, 181 Mo. 463, 80 S. 
W. 891; Richardson v. Champion, 143 Ma 
838, 45 S. W. 280; Leahey t. WItte. 123 Mo. 
207, 27 8. W. 402; Turner v. Johnson, 95 Mo. 
431, 7 8. W. 570, 6 Am. St Rep. 62; O'FaUon 
v. Clopton, 89 Mo. 284, 1 8. W. 802; Shaw v. 
Shaw, 86 Mo. 594; Damschroeder v. Thias, 
51 Ma loc. dt 103; Peacock v. Nelson, 50 
Mo. loc. dt 260; McNew v. Booth, 42 Mo. 
189; Cason v. Cason, 28 Mo. 47; Rose v. 
Bates, 12 Ma 80; 1 Beach on Trusts & True- 



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191 SOUTHWESTERN REPORTER 



tees, | 105, and note 1; 3 Pomeroy'B Eq. Jur. 
|{ 1053, 1055, and note 1; Browne oh Stat- 
ute of Frauds, §§ 96, 96A; 1 Greenleaf 8 Et. 
(15th Ed.) S 266. 

[8] In view of the foregoing, we are of 
the opinion that the parol agreement afore- 
said la not within the statute of frauds, and 
that plaintiffs are entitled to a decree es- 
tablishing the trust aforesaid. 

[4] V. Where a grantee takes possession of 
real estate under a deed, absolute in its 
terms, under a parol agreement, whereby 
he undertakes to hold the property for some 
legitimate purpose, or to sell and account for 
the proceeds, or to reconvey it to the grantor, 
his refusal to perform his promise amounts 
to a constructive fraud, and he will be held 
to be a trustee for the grantor or his heirs. 
McLure v. Bank of Commerce, 252 Mo. 510, 
160 S. W. 1005; Brightwell v. McAfee, 249 
Mo. 562, 155 S. W. 820; Phillips v. Jack- 
son, 240 Mo. lot cit 335, 144 S. W. 112, and 
cases cited; Wltte v. Storm, 236 Mo. 470, 
139 S. W. 384; Logan v. Brown, 20 Okl. 
334, 95 Pac. 441, 20 L. R. A. (N. S.) 288; 
Spencer v. Richmond, 46 App. Dlv. 481, 61 N. 
Y. Supp. 397 ; Brlson v. Brison, 75 Cal. 525, 
17 Pac. 689, 7 Am. St Rep. 189; Newton v. 
Taylor, 32 Ohio St. 399; Koefoed v. Thomp- 
son, 73 Neb. 128, 102 N. W. 268; Clark v. Han- 
ey, 62 Tex. 511, 50 Am. Rep, 536; Stahl v. 
Stahl, 214 111. 131, 73 N. E. 319, 68 L. R. A. 
617, 105 Am. St Rep. 101, 2 Ann. Cas. 77. 

[6] VI. Some criticism is Indulged by re- 
spondents in respect to the action of Cath- 
erine O'Day in failing to bring this suit until 
September, 1907, and after the death of M 
B. O'Reilly. The legal representative of the 
latter is not a party to the suit Gerald B. 
O'Reilly was shown the Inventory of his fa- 
ther's estate, and testified that at the time 
of his father's death the latter owned no 
notes, bonds, stock, cash, or chattels. The 
evidence discloses that the $26,000 note de- 
scribed in the deed of trust as well as the 
ten Interest notes described in said instru- 
ment were turned over to the Annex Realty 
Company, and were In possession of same 
when the case was tried below. Laches is 
no bar to a suit la equity to set aside an 
illegal foreclosure of a.,deed of trust, made 
by the trustee, who was also at the time the 
beneficiary therein, where no injury would 
result to those claiming under such fore- 
closure. Judge Wagner, in Landrum v. Un- 
ion Bank of Missouri, 63 Mo. loc. cit 56, 
57, has very -clearly and forcefully stated 
the rale of law prevailing in this state, in 
respect to foregoing question, as follows: 



"Laches is an equitable defense, and there Is 
no artificial, fixed, or determinate role on this 
subject; but each ease, as it arises must be de- 
cided according to its own particular circum- 
stances. Courts of equity never give encourage- 
ment to the enforcement of stale or antiquated 
demands. In certain cases a comparatively 
brief period .will be sufficient to bar a claim on 
the ground of laches, whilst in others courts will 
not stop short of the time of the statute of lim- 
itations. It all depends on the character of the 
property, the knowledge and actions of the par- 
ties." 

The principles of law announced In above 
quotation have been recognized as sound la 
many decisions of this court Kelly v. Hurt, 
61 Mo. 463; Bradshaw v. Yates, 67 Mo. 221- 
232; Spurlock v. Sproule, 72 Mb. 504-511; 
Kelly v. Hurt, 74 Mo. 561-566 ; Kline T. 
Vogei, 90 Mo. 240-250, 1 S. W. 738, 2 S. W. 
408; Rutter v. Carothere, 228 Mo. loc. dt. 640, 
122 S. W. 1056 ; Shelton v. Horrell, 232 Mo. 
loc. cit 373, 374, 184 S. W. 988, 187 S. W. 
264; Stanton v. Thompson, 284 Mo. loc. cit 
15, 136 S. W. 698; Toler v. Edwards, 249 Mo. 
loc. dt 167, 168, 155 S. W. 26; Myers 
v. De Lisle, 259 Mo. 506, 168 S. W. 676, 52 
L. R. A. (N. S.) 937; Roby v. Smith, 261 Ma 
loc. cit 200, 168 S. W. 965. 

[I] Neither of the defendants herein are 
innocent purchasers. Through their respec- 
tive officers, they took an active part in pro- 
curing the quitclaim deed from Catherine 
O'Day, by which the Annex Realty Company 
became the legal holder of all her real es- 
tate described therein. All of said property 
has been sold by the Annex Realty Company, 
except two parcels of same. The latter has 
received the rents and profits derived from 
said property since 1898. The plaintiffs are 
simply asking that a constructive trust be 
declared, and that defendants be required to 
make an accounting as contemplated In the 
parol agreement aforesaid. 

The rights of plaintiffs to maintain this ac- 
tion are not barred by reason of laches. 

VII. We have given expression to our 
views upon the main issues In the case, and 
such as might probably be presented upon a 
retrial of same. The finding of the rsferee 
and the judgment of the trial court are set 
aside, and the cause, reversed and remanded, 
with directions to the trial court to declare 
in favor of plaintiffs a constructive trust, as 
prayed for In petition, and to require at the 
hands of defendants an accounting, In ac- 
cordance with the views heretofore 1 expressed. 

PER CURIAM. The forCgoMg 1 opinion of 
RAILET, C, Is hereby adopted as the opin- 
ion of the court All concur. 



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Mo) 



STATE v. ELLISON 



4» 



STATE ex rtL HATES et >L r. ELLISON 
et si, Judges. (No. 19306.) 

(Supreme Court of. Missouri. In Banc. Dec 
2L 1916.) 

1. Courts «=>281(88) — JtrRMMcntm — 8u- 
preme Court. 

Appeals in condemnation cases affecting 
realty are within the jurisdiction of the Su- 
preme Court, since such proceedings involve 
title to land, and judgments therein affect it 
whether in trial or appellate courts. 

[Ed. Note.— For other cases, see Courts, Cent. 
Dig. § 667; Dec. Dig. «=>231(38)J 

2. Courts *=>281(88>— Jurisdiction— Court 
of appeals. 

Jurisdiction was in the Court of Appeals of 
an appeal taken from an order overruling a mo- 
tion to quash an execution issued by a circuit 
court to subject realty to' the payment of bene- 
fits assessed against it in a proceeding to estab- 
lish a parkway in • city, since the ruling on 
the motion could not affect the tide to the land 
levied on. 

[Ed. Note.— For other cases, see Courts, Cent. 
Dig. | 667 ; Dec. Dig. «=5>231<38).] 

8. Appeal and Ebbob "8=»10SO— Questions 
Reviewable — Motion to Quash Execu- 
tion. 

Mere errors in the procedure not invalidat- 
ing the judgment were not reviewable on ap- 
peal from an order overruling a motion to quash 
an execution issued by a circuit court to sub- 
ject realty to payment of benefits assessed 
against it in a proceeding to establish a park- 
way in a city, so that the Court of Appeals', 
by the use of the term "irregularities" in its 
opinion on appeal from an order overruling such 
a motion to quash, could not have meant mere 
error in the procedure not invalidating the 
judgment. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent, Dig. f 4087; Dec. Dig. «=>1030.] 

4. Courts <8=>37(3) -r Jurisdiction — Estop- 
pel to Dent Validity. 
Estoppel to deny the validity of a Judgment 
goes to the question whether the acceptance of 
the fruits of a proceeding closes the. mouth of 
him who accepts them when he undertakes to 
retain them and assert the invalidity of the 
proceeding or transaction out of which they 
came, and does not imply that the court had any 
jurisdiction of the subject-matter. 

Ed. Note.— For other cases, see Courts; Cent 
H 149, 151; Dec. Dig. «=»87(8).) 

6. Certiorari «=»64(1)— Dutt or Supreme 
Court. 

On certiorari' to review the record of a 
Court of Appeals on an appeal taken to it from 
an order overruling,. a motion to quash,an execu- 
tion issued by a circuit court to subject realty 
to payments of benefits assessed in a proceeding 
to establish a parkway in a city, though the re- 
lators have advanced no reason sufficient to jus- 



tify the questioning of ,a part of the opinion of 
the Court of Appeals, and though the conclusion 
reached by the Court of Appeals in such part of 



its opinion logically justified its judgment, with- 
out regard to other . questions, it is the duty 
of thet Supreme Qourt to examine other assailed 
portions of the opinion; harmony of decisions 
being on$ of the ends sought by the power given 
the court to entertain proceedings of this char- 



[EB. New— For . other oases, see Certiorari, 
Cent^Dig. II 174, 183, 184; Dec Dig. «=> 



6. Appeal and Ebbob <8=>2Q — Municipal 
Corporations ♦=»444— Improvements— Ju- 
risdiction. 

If a valid order of publication of an ordi- 
nance delimiting a district In a city benefited by 
the establishment of a parkway was a prerequi- 
site to jurisdiction of the subject-matter, and 
the order made and published was wholly insuf- 
ficient and a nullity, the trial' court issuing ex- 
ecution to subject realty to payment 'of bene- 
fits assessed had no jurisdiction of the subject- 
matter, nor had the Court of Appeals. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. f| 81-87; Dec. Dig. <g=20; 
Municipal Corporations, Cent Dig. §§ 1064, 
1069; Dec Dig. «=>444.] 

7. Certiorari «jb»00— Opinion or Court or 
Appeals— Incorporation bt Reference. 

Where the opinion of a Court of Appeals 
expressly referred to an order of publication of 
a city's ordinance, and made it the basis of a 
distinct holding, the order of publication was in- 
corporated in the opinion, ana was to be treated 
and examined on certiorari as part of it. 

[Ed. Note.— For other cases, see Certiorari, 
Cent. Dig. | 181 ; Dec. Dig. <S=o60.] 

8. Municipal Corporations <g=>302{4)— Im- 
provements — Description of District 
Bzsefitbp— Call or Order or Publica- 
tion. 

In the order of publication of a city's ordi- 
nance delimiting ' the district benefited by a 
proposed improvement the call for a designated 
point controlled, and required the rejection of 
the obviously erroneous word "east" in con- 
flict 

[Ed. Note.— For other cases, see_ Municipal 
Corporations, Cent Dig. f 807 ; Dee. Dig. «=» 
802(4).] 

9. Municipal Corporations «=»S02(4)— Im- 
provements— Ordbh or Publication— De- 
scription of District Benefited. 

in construing a deed, will, or other instru- 
ment bs an order of publication of a city's ordi- 
nance* delimiting a district benefited by an im- 
provement, the whole is to be considered in as- 
certaining the intent, a rule which applies as 
well to the description as to the rest. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. § 807; Dec Dig. «=> 

10. Municipal Corporations «=»302(4)— Im- 
provements — District Benefited — De- 
scription in Order of Publication. 

Description in the order of publication of 
an ordinance delimiting the district benefited 
by a proposed parkway In a city held to de- 
scribe a district exactly coinciding with the dis- 
trict described in the ordinance, though words 
in the ordinance were inadvertently omitted 
from the order of publication. 

[Ed. .Note.— For other cases, see Municipal 
Corporations, Cent. Dig. g 807; Dec. Dig. «=> 
302(4).] 

11. Municipal C6rporattons cj=»302(4)— Im- 
provements — District Benefited — Vari- 
ance or Description in Obdbb or Pub- 
lication. , 

Mere variance in language, between the 
order of publication and the ordinance delimit- 
ing the district to be benefited by a proposed 
parkway in -a city, was of no effect when all 
the lines, called, for. and the legal effect of the 
two descriptions was the same. 

(ted: Note.— For other cases, see Municipal 
Corporation*, Cent Dig. (807; Dec Dig. «s» 
302(4);} 

12. Trial <s=»ll(l) — Circuit. Court — Drvi- 

SIONSr-JURISDICTMlN— STATUTES. 

Under Rev. St 1909, 5 3968 et seq, govern- 
ing the assignment of Cases to divisions of the 



*t=>For other cases' tee sun* tdplo and KBY-NUMBER in all Key-Numbered Diffeits and Indexee 
191 S.W.— 4 



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50 



191 SOUTHWESTERN REPORTER 



circuit court of Jackson county, a case may 
be re transferred from a division to the court 
en banc or the assignment division, and a reas- 
signment made thereof to another division, 
though one division cannot intermeddle in a case 
assigned to and pending in another, as the divi- 
sion s jurisdiction is exclusive while the assign- 
ment stands. 

[Ed. Note.— For other cases, see Trial, Gent. 
Dig. { 28; Dec. Dig. «=>11<1).] 

13. Certiorari <8=64(1) — Inadvertence of 

Court of Appeals— Service. 
Where the Court of Appeals, when it stated 
that there was personal service, based no argu- 
ment and no conclusion upon any distinction be- 
tween personal and constructive service, and 
the conclusion it reached could not be affected 
by any difference between the two kinds of serv- 
ice, the inadvertence, if any, of the Court of 
Appeals in stating that there was personal serv- 
ice, cannot be made the basis of quashing any 
part of its record on certiorari. 

[Ed. Note.— For other cases, see Certiorari, 
Cent Dig. §§ 174, 183, 184-; Dec. Dig. <8=>64(1).] 

Certiorari by the State of Missouri, at the 
relation of and to the use of Leila L. Hayes 
and Llllie B. Lyle, against James Ellison, 
James M. Johnson, and Francis H. 'Trimble, 
as Judges of the Kansas City Court of Ap- 
peals. Writ quashed. 

Busby, Conkling & Withers, of Carrollton, 
and House, Manard, Allen & Johnson, of 
Kansas City, for relators, citing St Louis v. 
Koch, 169 Mo. 687, 70 S. W. 143; Bledsoe 
Hill Grading in Buchanan County v. Bled- 
soe, 200 Mo. 630, 08 8. W. 631; City of 
Tarklo v. Clark, 186 Mo. 285, 85 S. W. 829; 
Bricken v. Cross, 140 Mo. 166, 41 S. W. 735 ; 
Id., 163 Mo. 449, 64 S. W. 99. 

A. F. Evans and Jay M. Lee, both of Kan- 
sas City, for respondents. 

BLAIR, J. Certiorari: The record certi- 
fied is that of the Kansas City Court of Ap- 
peals on an appeal taken to it from an or- 
der overruling a motion to quash an execu- 
tion issued by the Jackson circuit court for 
the purpose of subjecting certain realty of 
relatrlces to the payment of benefits as- 
sessed against it in a proceeding to estab- 
lish a parkway In the Westpoint District of 
Kansas City. 

In that proceeding such preliminary steps 
were properly taken that a duly certified 
copy of an ordinance of Kansas City was 
filed in the Jackson circuit court, wherein 
was fully described the property designed to 
be condemned and, also, the benefit district 
In due course, an order of publication was 
made and published. This order purported 
to set out the ordinance mentioned. It fixed 
the time and place at which the jury would 
be Impaneled to assess damages and bene- 
fits, and notified all persons interested to be 
present The court also ordered service of 
notice upon interested persons or upon .mem- 
bers of their families over 15 years of age. 
Service upon relatrlces was had In the man- 
ner last mentioned. The Jury was impaneled 

4=3 For other case* 



in the courtroom of division 2 of the circuit 
court of Jackson county, and assessed rela- 
trlces damages, for property taken, at $1,- 
775, and assessed against other property be- 
longing to them benefits in the sum of $2,- 
781. Relatrlces did not appear. In due 
course, on May 18, 1912, the court entered 
Judgment upon the verdict confirming it in 
all respects. On July 2, 1913, execution was 
issued and levied on all property, Including 
certain lots belonging to relatrlces, against 
which benefits had been assessed and re- 
mained unpaid. Prior to this, relatrlces had 
caused the major portion of the damages 
awarded them to be offset against the bene- 
fits assessed against certain lots they owned 
in the benefit district, and thereby secured 
the cancellation of the assessment of benefits 
against these lots. Benefits assessed against 
other lots they owned they did not pay. The 
execution, as far as It affected relatrlces, ran 
against these last-mentioned lots. After the 
levy, the motion to quash the execution was 
filed and overruled, and an appeal taken. 

The opinion of the Court of Appeals (In re 
Ward Parkway, 188 Mo. App. 567, 176 S. W. 
529) Is assailed as being In conflict with cer- 
tain decisions of this court Other relevant 
facts are stated in the opinion. 

[1,2] I. Suggesting we should consider this 
case as if the record were here on appeal, It 
Is argued title to realty is involved and ju- 
risdiction is ours. Our transfer of the case 
to the Court of Appeals evidenced a con- 
trary view. Appeals in condemnation cases 
affecting realty are within our jurisdiction. 
Kansas City v. Railroad, 187 Mo. lot cit 
151, 86 S. W. 190; State ex rel. v. Rombauer, 
124 Mo. 598, 28 S. W. 75; City of Tarklo r. 
Clark, 186 Ma 294, 85 S. W. 329. Such pro- 
ceedings involve title, and judgments there- 
in affect it whether in trial or appellate 
courts. This Is not an appeal at all, and the 
motion to quash is not directed toward the 
part of the judgment condemning property, 
but toward an execution issued to enforce a 
money judgment for benefits assessed. In 
no way can the ruling on the motion affect 
the title to the land levied upon, otherwise 
than it would be affected by a ruling on a 
like motion in any case in which land had 
been levied upon to enforce a money judg- 
ment The jurisdiction of the appeal was in 
the Court of Appeals. State ex rel. v. 
School District 143Mo.loc.dt 91, 44 S. W. 
720; Paving Co. v. Hezel, 138 Mo. loc. cit 
230, 39 S. W. 781 ; Price v. Blankenship, 144 
Mo. loc dt 208, 45 S. W. 1123; Lawson v. 
Hammond, 191 Mo. loc cit 630, 90 S. W. 431. 

II. Relatrlces contend the decision of the 
Court of Appeals in several particulars runs 
contrary to last previous rulings of this 
court They urge: (1) The trial court 
which assessed the benefits, to collect which 
the assailed execution was issued and lev- 
led, was without jurisdiction because, it 



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STATE r. ELUSOH 



61 



is argued, the order of publication required 
by the charter, and made by the court and 
published, failed to describe accurately the 
benefit district; (2) the particular division 
of the Jackson circuit court, in which the 
Jury was Impaneled to award damages and 
assess benefits, had no Jurisdiction because 
the case was first assigned to another divi- 
sion; (3) the Jury was Impaneled at a time 
and in a divisional courtroom different from 
the time and place designated in the order 
of publication, and the Judgment is therefore 
void; and (4) for these reasons the trial 
court had no Jurisdiction of the subject-mat- 
ter of the condemnation proceeding, and 
therefore the whole proceeding was and Is 
roid. 

The opinion of (Jie Court of Appeals dis- 
closes, among other things, that It applied 
the doctrine of estoppel, or, as It Is some- 
times called, quasi estoppel. The opinion 
states, according to charter procedure, the 
circuit clerk, after Judgment became final, 
certified a copy of the verdict to the comp- 
troller and one to the treasurer of Kansas 
City. By that verdict relatrices had been 
awarded damages In the sum of $1,776 for 
land taken, add $2,781 had been assessed as 
benefits against other tracts of their prop- 
erty, not taken. The Court of Appeals said: 

"They were therefore entitled to receive $1,776 
and would be required to pay $2,781. Conse- 
quently, they could assign to the city the 
amount thev were entitled to receive, or any 
part thereof, in payment, pro tanto, of the 
amount due from them. This appellants did. 
Before the execution herein was levied, they ap- 
peared in the city treasurer's office and execut- 
ed an assignment of $1,139.60 of such compen- 
sation as an offset against the amount due 
for assessments on certain lots owned by them 
in the benefit district, and the lots so designat- 
ed were thereby credited with the amount as- 
sessed against them respectively, and were ful- 

ST relieved of such assessments. Appellants 
esignated the particular lots to be credited, 
and refused to allow the credit to be applied on 
pertain other lots owned by them, saying the 
last-mentioned lots were not worth the assess- 
ment against them. This was a clear and une- 
quivocal acceptance of the benefits of the judg- 
ment and a recognition of its validity. By their 
action appellants waived any irregularity, if any 
existed, in the proceeding with regard to their 
right to be notified of the time and place of Im- 
paneling die jury and of the trial thereafter. 
This seems to be so plainly a waiver of all ir- 
regularities, if any, which existed as to appel- 
lants, as to call for no citation of authorities. 

[3] This Is to be construed as a holding 
that relatrices had waived any objection 
they had to the validity of the Judgment 
The Court of Appeals could not have meant, 
by the use of the term 'Irregularities," mere 
errors In the procedure not Invalidating the 
judgment, since such errors were not review- 
able on a motion to quash such as that in 
this case. Therefore relatrices' contention 
that the doctrine of estoppel is inapplicable 
when jurisdiction of the subject-matter Is 
wanting Is not elimlnable on the ground that 
the Court of Appeals Intended to apply that 
doctrine solely to errors or Irregularities In 
procedure. 



The only criticism made of the application 
the' Court of Appeals made of the doctrine 
of estoppel Is that It Is contrary to certain 
decisions of this court which hold that lack 
of jurisdiction of the subject-matter cannot 
be waived or conferred by consent This 
objection, therefore, in the circumstances of 
this case, impliedly concedes the facts are 
sufficient to estop relatrices to complain of 
defects to which such estoppel applies, but 
proceeds upon the view that the principle Is 
Inapplicable where there is no Jurisdiction 
of the subject-matter. Further, It Is not con- 
tended the circuit court did not have juris- 
diction to entertain condemnation proceed- 
ings at all, nor that there had been any fail- 
ure to take all steps requisite to confer ju- 
risdiction upon the court to make the order 
of publication In question. It is contended 
the order Itself Insufficiently described the 
benefit district constituted by the ordinance 
passed by the council, and that thereafter 
the wrong division of the court tried the mat- 
ter and tried it at a time and place different 
from the time and place fixed by the order of 
publication. 

The decisions with which the decision of 
the Court of Appeals is said to conflict on 
this point are those in Be Drainage Dis- 
trict v. Voltmer, 256 Mo. lot clt 162, 166 S. 
W. 838; State ex reL v. Nixon, 232 Ho. 496, 
134 8. W. 588; Springfield, etc., Ry. v. 
Schweitzer, 246 Ma 122, 151 S. W. 128, and 
St. Louis v. Glasgow, 264 Mo. loc clt. 290, 
291, 162 S. W. 596. None of these decisions 
decides the exact point. In none was the 
question of estoppel discussed. The first 
three announce the general rule that lack of 
jurisdiction of the subject-matter cannot be 
waived or conferred except by consent The 
fourth applies that rule to a condemnation 
case In which the condemnation proceedings 
were held void for want of a record showing 
that an opportunity had been afforded the 
complaining defendant to settle amicably be- 
fore suit brought; the charter of the city 
making such an opportunity a condition pre- 
cedent to the institution and maintenance of 
such proceedings. As stated, these decisions 
discuss no question of estoppel. The argu- 
ment of relatrices that they apply in this case 
is that since lack oi jurisdiction of the sub- 
ject-matter cannot be waived or conferred by 
consent and since what cannot be done di- 
rectly cannot be done indirectly, no estoppel 
can ever arise against the right to question a 
judgment on the ground mentioned. 

[4] The conclusion does not follow. The 
cases cited and others like them (see briefs 
of counsel) usually discuss whether appear- 
ance and participation in the same case 
waive, or consent confers, jurisdiction of the 
subject-matter, or apply the general rule that 
every essential statutory prerequisite must 
be compiled with In condemnation proceed- 
ings or the judgment therein is void. Pash 
v. St Joseph, 257 Mo. 332, 166 S. W. 710. 
Estoppel goes to the question whether the ac- 



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191 SOUTHWESTERN REPORTER 



(Wo. 



ceptance of the fruits of a proceeding closes 
tbe month of him who accepts them when 
he undertakes to retain them and assert the 
Invalidity of the proceeding or transaction 
out of which they came. Such estoppel does 
not imply that the court had Jurisdiction of 
the subject-matter. It prevents the party 
who has profited by the proceeding from as- 
serting the truth. It does not give Jurisdic- 
tion jto the court. It merely closes the 
mouth of the party. There are decisions of 
this court applying the doctrine of estoppel 
under various circumstances. In Hereford 
v. Rank, 68 Ma 880, the eourt had no power 
to appoint any save the sheriff to succeed a 
trustee who failed to act With the consent 
of the parties It appointed another, who sold, 
and the parties took the proceeds. They 
were held estopped. In Dutcher v. Hill, 29 
Mo. loc. dt. 274, 77 Am. Dec. 572, one who, 
without notice, had been adjudged Insane 
and afterward applied for a discharge on 
the ground be had recovered his sanity, was 
held to be estopped to question the validity 
of the proceedings. ' In Austin v. Doring, 68 
Mo. 19, In holding one estopped to question 
service, this court said it bad been held, "in 
the application of this principle, that It 
makes no difference whether tbe proceedings 
* • • are voidable or wholly void, In 
consequence of want of Jurisdiction." In 
Railroad v. Bridge Ob., 215 Mo. 298, 114 S. 
W. 1087, It was held that one who had ac- 
cepted the damages In a condemnation suit 
"became estopped by that action, irrespec- 
tive of any error in the condemnation pro- 
ceedings, from further claiming the land in 
suit, or questioning the validity thereof, and 
that estoppel Is just as effective against as- 
sailing said condemnation proceeding col- 
laterally as If the estoppel had been invoked 
In the direct proceeding to appropriate the 
land in suit" In Hector v. Mann, 225 Mo. 
loc. dt 248, 124 S. W. 1109, the deed assailed 
being void because made prior to affirmance 
of the sale, the court quoted with approval 
what we have quoted from Austin v. Lorlng. 
It is true these cases do not Involve any ques- 
tion of Jurisdiction of tbe subject-matter, but 
they Indicate tbe attitude of this court to- 
ward the principle. 

Tbe exact question "was approached In 
City of St Louis v. Wiggins Ferry Co., 88 
Mo. loc. dt 619. The court was discussing 
a judgment in condemnation proceedings 
which was held absolutely void for lack of an 
attempt to agree with the owner before be- 
ginning the proceedings. It was held the 
proceedings were absolutely "void, certainly 
so as to all property owners who did not in 
some way ratify them." It was then held 
there was no estoppel in the case. 

In other Jurisdictions the rule is applied 
as well to want of Jurisdiction to proceed 
(which counsel .terms .Jurisdiction of tbe sub- 
ject-matter) and to any sort of lack of ju- 
risdiction, Ogden y. Stokes, 26 Kan. loc dt 



518 ; Salmond v. Price, 18 Ohio, loc dt. 400, 
42 Am, Dec. 204; Carrfgan v. Drake, 36 S. 
0., loc dt 365, 15 S. E. 339; St U ft S. F. 
R. Co. v. Folti (O. O.) 62 Fed. loc dt 630 
et seq. ; Skinner v. Hartford Bridge Co., 29 
Conn, loc dt 537, 538; Town v. Town of 
Blackberry, 29 111. loc. dt 138 et seq. ; Kile 
v. Town of Yellowhead, 80 111. 211 ; Factors' 
ft Traders' Ins. Co. v. De Blanc, 31 La. Ann. 
100. 

As already stated, relatrlces do not con- 
tend the circuit court of Jackson county did 
not have jurisdiction to entertain condemna- 
tion proceedings of this class. Though it be 
conceded the proceedings were defective In 
the particulars relatrlces assert they were 
and that the effect of such defects was as 
contended, still no decisions of this court 
have been brought to our attention which are 
contravened by tbe decision of the Court of 
Appeals on the question of estoppel. That 
court does not say want of Jurisdiction of 
the subject-matter can be waived in the 
sense in which that term is used in tbe cases 
relators cite. The gist of Its holding is that 
relators, having accepted the fruits of the 
proceedings are estopped to question their va- 
lidity. This does not mean that want of Ju- 
risdiction of the subject-matter is ever waiv- 
ed by appearance or ever conferred on the 
court lacking it It does not mean that tbe 
court's Jurisdiction is aided at all, but that 
the acceptance of the fruits of the proceed- 
ings closes the mouth of the accepting de- 
fendant and denies him permission to set 
up the fact thereafter. It is not shown to 
, conflict with any decision of this court ; con- 
sequently it is beyond our reach, whether we 
regard It as sound or otherwise. No other 
ground for quashing this part of the opinion 
is advanced. This holding of the Court of 
Appeals covers the entire case and, alone, en- 
tailed a Judgment of affirmance. 

[S] III. Despite the fact relatrlces have 
advanced no reason sufficient to justify the 
questioning of that part of the opinion set 
out under II, supra, and despite tbe further 
fact that the conclusion reached by the 
Court of Appeals In that part of its opinion 
logically Justified the judgment of affirmance, 
without regard to other questions, It is never- 
theless our duty to examine other assailed 
portions of the opinion; harmony of ded- 
sions being one of the ends sought by the 
power given us to entertain proceedings of 
this character. 

IV. In the opinion of the Court of Appeals 
it was said: 

"We do not understand appellants as ques- 
tioning the jurisdiction of the circuit court of 
Jackson county to try proceedings of the nature 
involved herein. Nor is there any contention 
over the regularity of the steps taken to invoke 
that jurisdiction up to the time the order of pub- 
lication was made, nor, indeed, up to ana in- 
cluding the publication of the order of publica- 
tion and the personal service of said order upon 
appellants. To that point all tbe requirements 
of the charter were complied with." 



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STATU! y. BLLIBOK 



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[I] Relatrlees earnestly contend they did 
attack the sufficiency of the order of publica- 
tion. This question we shall not attempt to 
decide. If, In fact, a valid order of publica- 
tion was a prerequisite to jurisdiction of the 
subject-matter, and the order made and pub- 
lished was, as contended, wholly Insufficient 
and a nullity, then the trial court bad no 
jurisdiction of the subject-matter, and the 
Court of Appeals was in the same condition. 



benefit district. That ordinance, or the sub- 
stance thereof, was required by the charter 
to be set out in the order of publication. No 
question is raised as to the description of the 
property to be condemned, but It is insisted 
the order of publication contains no descrip- 
tion of a benefit district, L e., that calls in the 
ordinance description were omitted and the 
sutrey did not close. The subjoined plat il- 
lustrates the contention : 




rff.c.cw,ryw-,'Af 



T 



—2 h™- j— 



■S.W.CeK.tjLlkSH'M 



1 



HoTE. RefRRSBJiTa link of Benbfit District ocmkimo mOffoiNAMea 

......RerftutNTs « « • • « • Order oirrheue*rion 

ACCoroiim t»tw ooHTumon or Ruxniaia. 



In such circumstances and to examine such 
question certiorari is a proper remedy. Fur- 
ther, whether the question was presented in 
the Court of Appeals or not, the court held 
the order of publication sufficient, and that 
holding is reviewable whether elicited by a 
question made or written down sua sponte. 

[7] The order of publication Is not set out 
In the opinion. Nevertheless, It Is expressly 
referred to and made the basis of a distinct 
holding. The effect of this is. to Incorporate 
it in the opinion and require that It be treat- 
ed and examined as a part of it. No one 
would doubt that any court in citing and ap- 
plying the decision on this point would be un- 
der the necessity of consulting the record 
and construing the opinion In connection with 
the order of publication the record shows. 
If a reference of this sort in an opinion does 
not, in accordance with the general rule, 
warrant this court in treating the matter 
referred to as thereby made a part of the 
opinion- for the purposes .of writs like this, 
then the harmony of decision required to be 
maintained means only a surface harmony 
which may disappear as soon as it is deter- 
mined what the opinion, under examination 
really means. Such a result is unreasonable. 
The order of publication is to be held incor- 
porated by reference. 
The ordinance described the property Jit 
to. condemn and . delimited . the 



. The part of the order of publication perti- 
nent to this question is as follows : 

"Sac. 8. The common council determines and 
prescribes the limits within which private prop- 
erty shall be deemed benefited by the improve- 
ment herein proposed to be assessed and charged 
to pay compensation therefor, as follows, to wit : 
Beginning at the northeast corner of the north- 
west quarter (ty) of section No. twenty-nine (29), 
township No. forty-nine (49) north, ranee No. 
thirty-three (S3) west (said point being in Forty- 
Third and Oak streets); (1) thence west along 
the north line of section- twenty-nine (29), and 
along the north line of section No. thirty (30), 
township No. forty-nine (49) north, range No. 
thirty-three (33) west (said line being in Forty- 
Third street), to a point five hundred and fifty 
(550) feet west of the east line of said section 
No. thirty (30); (2) thence south along a line 
five hundred and fifty (550) feet west of hnd 
parallel with the east line of said section No. 
thirty (30) (said line being in Pennsylvania av- 
enue) to the south line of the northeast quarter 
(%) of said section No. thirty (30) ; (3) thence 
east along the south line of the northeast quar- 
ter (V4) of said section No. thirty (30) to the 
northwest corner of the northeast quarter (%) of 
the northeast quarter (%) of the southeast quar- 
ter (%) of said section No. thirty (30), (4) to the 
southwest corner thereof ; (5) thence east along 
the south line of the northeast quarter (%) of 
the northeast quarter (%) of the southeast quar- 
ter (H) of Baid section N6.' thirty (30) to the 
east line of said section No. thirty (30); (6) 
thence south along the west line of said section 
twenty-nine (29) to the southwest corner of the 
north half (%) of the southwest quarter (%) of 
said section No. twenty-nine (29); (7) thence 
east along the south line' of the north half (%) of 
the southwest quarter of sai<|. section No. twen- 



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191 SOUTHWESTERN REPORTER 



ty-nine (29) to the east line of the southwest 
quarter (%> of said section No. twenty-nine ; 
thence north along the north and south center 
line of said section No. twenty-nine (29), (sale 
line being in Oak street) to the point of begin- 
ning." 

[8] We number the calls for convenience In 
referring to them. The second word In 3 is an 
obvious error, but the call for the designated 
point controls, and the word "east" must be 
rejected. Johnson v. Bowlware, 149 Mo. loc. 
cit 466. 457, 51 S. W. 109. This brings ns 
to the N. W. corner of the N. E. % N. E. % 
S. E. % of section 30. Call 4 Is simply "to 
the southwest corner thereof." In the ordi- 
nance, as passed this call was as follows : 

"Thence south along the west line of the 
northeast quarter of the northeast quarter 04) 
of the southeast quarter of said section No. thir- 
ty (30) to the southwest corner thereof." 

Relatrlces* argument is that the omission 
of the words quoted from the ordinance 
leaves a call which carries the line to the 
southwest corner of section thirty. They 
say: 

"The description in the order of publication 
does not show a complete circuit from the point 
of beginning, but, after reaching point C (re- 
ferring to plat accompanying opinion), attempts 
to go east to point D and from there it goes to 
point X at the southwest corner of section 30 
and is lost" 

[I] The established rule of law is that, in 
construing a deed or will or other instru- 
ment, the whole is to be considered in ascer- 
taining the intent, and this applies as well 
to the description as to the rest. Ruther- 
ford v. Tracy, 48 Mo. 326 et seq., 8 Am. Rep. 
104. In the description under consideration, 
the third call, as already pointed out, car- 
ries the line to the northwest corner of the 
N. E. % of the N. E. % of the S. B. % of 
section 30. The fifth call carries the line 
"thence east along the south line of the" 
same 10-acre tract to the northwest corner 
of which the third call brought the line. 
This fifth call is so worded that, unless modi- 
fied by some other language, it runs from its 
point of beginning to its point of ending 
"along the south line" of the same 10-acre 
tract. Its wording is such that Its natural 
meaning is that It starts from some point 
from which it can run along the south line of 
that tract Relatrlces do not contend the 
fourth call is insufficient to carry the line 
somewhere, but they conclude the point to 
which it takes It Is the southwest corner of 
section 80 (point X on the plat), construing 
the word "thereof in the fourth call as re- 
ferring to "section thirty," a part of the de- 
scription of the terminus of the third call, 
Instead of construing it as referring to the 
10-acre tract, the northwest corner of which 
is the terminus of that call. This is the 
method by which relatrlces reach their con- 
clusion that the fourth call carries the line or 
survey to point X. 

[11,11] Is it logical thus to divide the 
description immediately preceding the word 
"thereof" and construe the 1 word as referring 



to a part, only, of that description? The- 
phrase "of said section No. thirty (30)" is 
but a modifier of the description of the 10- 
acre tract the N. E. % of the N. B. % of the- 
S. B. and merely designates the section 
in which it lies. The reference In "thereof" 
does not run to this phrase alone, but to the- 
tract described In the third and preceding- 
call. This construction carries the line along 
the west side of the 10-acre tract to the point 
at which the next call begins, and thus har- 
monizes the fourth call with the rest, in- 
stead of carrying the line to the southwest 
corner of section 30, nearly a mile in a 
straight line through city blocks and re- 
gardless of streets and lots, from which 
point no succeeding call takes up the line. 
If the word "thence" appeared after the 
"(4)," as it appears in the description as set 
out, no possible doubt could remain. Words 
In the ordinance were inadvertently omitted 
from the order of publication, but the ordi- 
nance describes a district exactly coinciding 
with the district described in the order, con- 
strued as we have construed it We think 
the description in the order must be thus 
construed, in view of all its language. So 
construed, It is sufficient and there is no 
variance from the ordinance description. 
Certainly, mere variance in language is of 
no effect when all the lines called for and 
the legal effect of the two descriptions is the 
same. The order of publication is not open 
to the objection made. 

V. The Jackson circuit court was compos- 
ed of eight divisions. Seven of these held 
their sessions in separate courtrooms in the 
county courthouse at Kansas City. One of 
these constituted the assignment division. 
The eighth division transacted its business 
at Independence. It is argued division No. 
2 of the Jackson circuit court, in which the 
Jury was impaneled, never acquired jurisdic- 
tion, and the Court of Appeals brought Its 
opinion into conflict with decisions of this 
court when it held the contrary. 

(1) The first argument advanced In support 
of this contention Is that: 

"Although the several divisions" (of the Jack- 
son circuit court) "constitute one court when 
the assignment judge assigns a cause to any 
one of these several divisions, that division ob- 
tains as sole and exclusive jurisdiction of that 
proceeding as if it constituted the whole court 
and its power, control, and jurisdiction over 
that particular cause is as exclusive as if the 
cause were pending before it in some other cir- 
cuit" 

The cases cited In support of this position 
are State ex rel. v. Allen, 235 Mo. 298, 138 
a W. 339; State ex ret v. BggerB, 152 Mo. 
485, 64 S. W. 498; Haehl v. Wabash, 119 
Mo. 825, 24 S. W. 737; and State ex rel. 
v. Reynolds, 209 Mo. 161, 107 S. W. 487, 15 
L. R. A. (N. S.) 963, 123 Am. St Rep. 468, 
14 Ann. Cas. 198. 

[12] The statute (section 8968 et sea.., R 
S. Mo. 1909) governs the assignment of cases 
to divisions of the circuit court of Jackson 
county and contains no provision lncongist- 



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CRAWFORD t. HEADLEE 



55 



ent with the re transfer of a case from a 
division to court en banc or the assign- 
ment division, and a reassignment there- 
of to another division. Neither do the 
cases cited contain any holding adverse to a 
view that this can be done. The gist of those 
decisions Is that one division cannot inter- 
meddle in a case assigned to and pending 
in another. While the assignment stands the 
division's Jurisdiction is exclusive. The 
opinion does not conflict with these decisions. 

(2) It 1b argued the opinion conflicts with 
some of ours, in holding the Judgment was 
not shown to be invalidated by the retrans- 
fer of the cause by division 1 to the assign- 
ment division and its assignment to division 
2 after the order of publication was made 
and before it was filed in division L This 
position is based, in part, on the argument 
considered under (1), supra, to which argu- 
ment we concluded we could not agree. It 
is also insisted that, as soon as the cause 
was assigned to division 1, "it became neces- 
sary for that division to take the further 
steps essential to take jurisdiction of the 
subject-matter," and, in short, that it was 
necessary that all the essential steps be tak- 
en by the same division in order for the court 
to acquire Jurisdiction of the subject-matter 
at alL By "Jurisdiction of the subject-mat- 
ter" counsel evidently mean Jurisdiction to 
proceed and render judgment It follows, If 
their position is sound, that condemnation 
proceedings, once assigned to a division, must 
remain there until judgment is rendered, and 
that the power to transfer and reassign does 
not include such cases. We have examined 
the authorities cited, and they do not so 
hold. The Court of Appeals discussed most 
of these. Its opinion conflicts with none of 
them and Is not in conflict with the statute. 
Section 3960 et seq., R. S. 1009. 

VI. It Is urged the Judgment Is void be- 
cause It is said the jury in the condemnation 
case was Impaneled at a time and place dif- 
ferent from the time and place fixed In the 
order of publication. The ground upon which 
the Court of Appeals disposed of this partic- 
ular question was that relatrlces waived it 
under the rule announced in that part of 
the Court of Appeals' opinion considered in 
paragraph II, supra. For the reasons there 
given, the same conclusion follows with re- 
spect to this part of the opinion. 

[IS] VII. In referring to the service to 
the condemnation case, the Court of Appeals 
stated that there was personal service upon 
relatrlces as well as service by publication. 
Relatrlces contend service was by publica- 
tion and by service in the case of each rela- 
trix, upon a member of her family over the 
age of 15 years. It is urged the court there- 
by held such service upon the member of the 
family to be personal and that this court 
In Its last previous ruling held such service 
to be constructive. Feurt v. Carter, 174 Mo. 
280, 73 S. W. 576. We do not think it neces- 



sary to discuss this matter, since the Court 
of Appeals, when it stated there was person- 
al service, based no argument and no con- 
clusion upon any distinction between person- 
al and constructive service. The argument 
of the opinion made In that connection Is as 
well supported by the fact of service on mem- 
bers of the families of relatrlces as npon di- 
rect personal service upon them. The con- 
clusion they reached could not be affected 
by any difference between the two kinds of 
service. In such circumstances, the inadver- 
tence, if any, cannot be made the basis of 
quashing any part of the record. 

A careful examination of the various as- 
signments discloses there Is no reason ad- 
vanced warranting us in quashing any part 
of the record of the Court of Appeals. Our 
writ is quashed. All concur, except FARIS, 
J., not sitting; BOND, J., in result only. 



CRAWFORD v. HEADLEE et at (No. 17380.) 
(Supreme Court of Missouri, Division No. 1. 
Dec. 20, 1916.) 

Reformation of Instruments <8=>48 — Re- 
lief—Conformity to Pleadings. 
Defendant cannot object to a decree In a 
suit for reformation because only part of the 
relief asked was granted as by including only 
part of the land asked to be included in a de- 
scription. 

(Ed. Note.— For other cases, see Reformation 
of Instruments, Cent Dig. f 199; Dec Dig. 
<8=»48J 

Appeal from Circuit Court Jasper County ; 
Joseph D. Perkins, Judge. 

Action by D. L. Crawford against Jesse I. 
Headlee and others. From judgment for 
plaintiff, defendants appeal. Affirmed. 

J. H. Bailey, Walter E. Bailey, and Shan- 
non & Phelps, all of Carthage, for appellants. 
J. D. Harris, of Carthage, for respondent 

BROWN, O. This is a suit in equity to re- 
form a conveyance of land in Jasper county, 
Mo. It Is here, upon the record proper, con- 
sisting of the petition, answer, and judgment 
of the court reforming the deed. The land 
conveyed by plaintiff to defendant Is describ- 
ed in the deed as follows: 

"The west half of lots three (8) and four 
(4) of the northwest quarter of section one (1), 
township twenty-nine (29), of ranee thirty 
(30). The said party of the second part is 
hereby given the right of ingress and egress for 
use as a waterway over and across the north- 
west corner of the east half of lot four (4) 
in section one (1), in township twenty-nine 
(29) of range thirty (30); said right of way 
to be four (4) rods long east and west and one 
and one-half (1%) rods wide north and south, 
the north line of said east half of lot 4 to be 
the north of said waterway and to run paral- 
lel therewith. Second party to build and keep 
in repair a substantial, lawful fence inclosing 
said waterway." 

The petition asks that It be reformed to 
read as follows: 

"The west half of lots three (3) and four (4) 
of the' northwest quarter of section one (1) 



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191 SOUTHWESTERN REPORTER 



in township twenty-nine (29) of range thirty 
(30), and also a tract beginning at a point two 
rods south df the northwest corner of the east 
half (%) of lot 4 of the northwest quarter of 
section one,, (1), township twenty-nine (29), 
range thirty (30), thence east and parallel with 
the north line of said lot 4 to the bank of 
Deer creek, thence angling in a southeasterly 
direction to a small sycamore tree on the south 
bank of said creek, thence angling across said 
creek to an elm tree on the north bank thereof, 
thence due north to the north line of said lot 
4, thence west along the north line of said lot 
4 to the said northwest corner of the east half 
(%.) thereof, and thence south 2 rods along 
the west line of the east half (%) thereof 
to place of beginning, for a water right. Said 
second party to build and maintain a substan- 
tial fence inclosing said waterway." 

The court, upon hearing the evidence, en- 
tered its decree for plaintiff, which, so far as 
it explains the issues in this appeal, is as 
follows: 

"Whereas, the premises as described in said 
deed do not reach any part of Deer creek, and 
do not afford the party of the second part in 
said conveyance, his heirs and assigns, any wa- 
terway to or right in a part of Deer creek, the 
premises should have been described so as to 
express and carry out the intention of the par- 
ties as follows, to wit: The west half of lots 
three and four of the northwest quarter of sec- 
tion one, township twenty-nine, range thirty, in 
Jasper county, Missouri, and also a tract be- 
ginning at a point one and one-half rods south 
of the northwest corner of the east half of 
lot four of the northwest quarter of section 
one, township twenty-nine, range thirty, run- 
ning thence east parallel with the north line 
of said lot four to and across Deer creek a 
sufficient distance from said creek where it will 
be practicable to erect and maintain a good and 
efficient fence to prevent stock from crossing 
such fence, thence along on the top of the bank 
of said creek a sufficient distance from said 
creek to erect and maintain such a fence as 
aforesaid, to .the north' line of said lot four, 
thence west along said north line of said lot 
four to the said northwest corner of the east 
half of said lot four, thence south one and 
one-half rods along the west line of the east 
half of Bald lot four to place of beginning, for 
a water right as an appurtenant to and to be 
used by the party of the second part, his heirs 
and assigns', in connection with the said west 
half of lots three and four of the northwest 
quarter of section one, township twenty-nine, 
range thirty; said second party, his heirs and 
assigns, to erect and maintain a substantial 
fence inclosing said water right 

"Wherefore, by reason of the premises and 
in order to effectuate the intention of said par- 
ties, and that said deed shall correctly describe 
and convey the premises thereby intended to- be 
conveyed, it is ordered, adjudged, .and decreed 
by the court that; the said deed be and .the same 
is hereby reformed, and the description there- 
in of the premises conveyed corrected, so that 
as corrected there is hy said deed conveyed to 
the party of the second part therein the fol- 
lowing described lots, tracts, or parcels of land, 
lying, being, and. situate in Jasper county and 
state of Missouri, to wit: The west half, of 
lots three and four of the northwest quarter of 
section one, township twenty-nine, range thir- 
ty, and also a tract . beginning at a point one 
and one-half rods south of the northwest cor- 
ner of the east half of lot four of the north- 
west quarter of section one, township twenty- 
nine, range thww; running thence east paral- 
lel with the north line of said lot four to and 
across Dew creek, to a point on the top of the 
bank on said Deer creek, a sufficient distance 
from said creek where it will be practical to 
erect and maintain a good and sufficient fence 
to prevent stock from crossing such fence, 



thence along on the top of said bank of said 
creek a sufficient distance from said creek to 
erect and maintain snch a fence as aforesaid to 
the north line of said lot four, thence along 
the said north line of said lot four to said 
northwest corner of the east half of said lot 
four, thence south one and one-half rods along 
the west line of the east half of said lot four 
to place of beginning, for a water right as an 
appurtenant to and to be used by the party of 
the second part, his heirs and assigns, in con* 
nection with the said west half of lots three 
and four of the northwest quarter of section 
one, township twenty-nine, range thirty; said 
second jparty, his heirs and assigns, to erect 
and maintain a substantial fence inclosing said 
water right" 

It appears from the foregoing statement. 
Including that part of the court's finding 
which we have quoted, that a tract of land 
was conveyed by the deed In question de- 
scribed as the west half of lots 3 and 4 (the 
dimensions of which are not given), together 
with a small strip for a waterway 1% rods 
wide, the west end of which abutted upon 
the land so conveyed and extended along the 
south side of the north line of the east half 
of lot 4, In an easterly direction 4 rods. 
This did not quite reach Deer creek, the 
source of the water to be brought through It, 
which extended in a northwesterly course to 
and across the north line of the lot. It will 
be seen from this description that the cor- 
rection made by the court extended this strip 
or waterway to and across Deer creek, so as 
to Include a very small piece of land, while 
the correction asked in the petition Included 
a larger tract, but the parcel included by the 
court was all within the boundaries Of the 
correction asked for In the petition. 
The only error assigned is as follows: 
"The decree in this case is erroneous, be- 
cause it is not responsive to the pleadings." 

The appellant in his brief contents him- 
self with the statement of the general 
principle that a judgment must be responsive 
to the Issues made by the pleadings, but fails 
to enlighten us as to the particular In which 
the judgment In this case fails to meet that 
requirement Turning to the respondent's 
brief for comfort and assistance, we find him 
reluctant to commit himself as to the exact 
question in the case. Turning to the judg- 
ment itself, we find nothing suggestive of 
doubt that it is founded upon a cause of ac- 
tion pleaded In the petition. It is true that 
the correction made i>y the court does not 
conform to the description used by the plain- 
tiff in asking for It; but the land itself is 
the thing Involved, by whatever words It 
may be described. Looking at the variance 
between the petition and decree from this 
standpoint, we find that the relief asked for 
was granted as to a portion only of the land 
sought to be included In the deed by the 
plaintiff. In other words, the court found 
that there was a mistake made In describing 
the waterway, by the omission of a little 
tract intended to be included in It,' and grant- 
ed that part of the relief asked. While the 
rule Is that a court of equity will not, in. 



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STATE r. POTTER 



67 



these cases, grant unasked for relief, we 
know of no rule which precludes It from 
granting a part and withholding a part If 
we did, we might be constrained to remand 
the cause, that the pleadings might be con- 
formed to the facts proved; but, deeming 
such course unnecessary, we affirm the Judg- 
ment. 

BAILEY, C, concurs. 

PER CURIAM. The foregoing opinion of 
BROWN, C, Is adopted as the opinion of the 
court All concur. 



STATE ex tat BUBOES, ex rel. MARBUT 
v. POTTER et al. (No. 18670.) 
(Supreme Court of Missouri, Division No. 1. 
Dec. 20, 1916.) 

1. Quo Warranto 34— Sufficient Inter- 
est or Relator. 

A taxpayer and resident of a consolidated 
school district having children therein, has a 
sufficient interest to prosecute on his relation, 
an information in the nature of quo warranto, 
to determine the validity of the organisation of 
such district 

[Ed. Note.— For other cases, see Quo Warran- 
to, Cent Dig. | 41 ; Dec. Dig. *s»84.] 

2. Schools and School Districts <8=»38 — 
Estoppel to Attack Organization. 

An elector, by participating in an election 
by which the organization of a consolidated 
school district is effected, is not thereby estop- 
ped from denying the validity of the organiza- 

[Ed. Note.— For other cases, see Schools and 
School Districts, Cent Dig. <8=»56; Dec. Dig. 
«=»33.] 

8. Quo Warranto «=»29— Laches. 

In an action of quo warranto, in which the 
validity of the organization of a consolidated 
school district is questioned on the ground that 
there were not a sufficient number of notices 
of election posted according to law, a delay from 
May 29th, the date of posting, till November 
14th, before filing suit does not constitute lach- 
es in the absence of proof thereof; it not being 
incumbent upon relator to travel over 86 miles 
of territory to determine if the required num- 
ber of notices had been posted. 

[Ed. Note.— For other cases, see Quo War- 
ranto, Cent Dig. §{ 31-88; Dec. Dig. «=>29.1 

4. Evidence <8=>157(D— Secondary. 

Although the law under which the organiza- 
tion of a consolidated school district is attempt- 
ed provides for preservation of records of pro- 
ceedings, oral evidence is admissible to prove 
how notice of election was given, where ft ap- 
pears that no record was made of the same. 

[Ed. Note.— For other "cases, see Evidence, 
Cent Dig. f 460? Dec. Dig. «=»157(1).] 

6. Schools and School Districts <8=»37(4) 
—Organization— Compliance with Stat- 
ute. 

Under Acts 1913, p. 722, $ 3, requiring 
that notice of a meeting on lie question of con- 
solidating school districts must be given by 
posting 10 notices and 5 plats 15 days before 
election, a posting of 8 notices and 4 plats 15 
days before election, and 4 notices and 2 plats 
14 days before election, is insufficient 

.[Ed. Note.— For other cases, see Schools and 
E^od^Districts, Cent Dig. I 64; Dec. Dig. 



Appeal from Circuit Court, Greene Coun- 
ty; Arch A. Johnson, Judge. 

Information In the nature of quo war- 
ranto by the state, on the information of 
John T. Burgee, on relation of James Mar- 
but, against L. D. Potter and others. From 
a Judgment ousting defendants as school di- 
rectors, they appeal. Affirmed. 

This Is an information in the nature of 
quo warranto filed in the circuit court for 
Barry county on November 14, 1913, by leave 
of court. It was presented by the prosecut- 
ing attorney of said county at the relation 
of James Marbut, a resident and taxpayer 
In school district No. 22 of said county, hav- 
ing a family including a child of school age 
who was a pupil in the school of said dis- 
trict It challenges the right of the six de- 
fendants to exercise the office of directors of 
an alleged consolidated school district in- 
cluding the whole of said district No. 22 and 
four other districts in said county, challenging 
the organization and existence of said con- 
solidated district The cause was removed 
by change of venue to Greene county, where 
It was tried in the circuit court of that coun- 
ty at the January term, 1914. After the tes- 
timony was all in, the court filed the fol- 
lowing finding of facts: 

"The court finds the facts to be: That, on the 
27th of May, 1913, a petition in regular form, 
signed by the requisite number of taxpayers of 
the proposed consolidated district petitioning 
the county superintendent of schools to take 
the steps necessary to organize such consolidat- 
ed district, was filed with the county superin- 
tendent of schools of Barry county, Mo. That, 
upon the receipt of the petition, the county su- 
perintendent of schools, having taught school in 
the proposed consolidated school district and be- 
ing acquainted with the conditions and needs 
of the proposed district prepared a notice of 
an election to be held on the 12th day of June, 
1913, and that said notice was in form as re- 
quired by law and was sufficient in form and 
substance. That, at the same time and on the 
same day the notice was prepared, the county 
superintendent of schools, by aid of plats found 
in the office of the county clerk, prepared a 
plat or map of the 'proposed consolidated district 
and traced the same onto blanks sent out by the 
state superintendent of schools, which blanks 
showed two political townships, with blank spac- 
es in which to insert the number of range and 
townships-; on the face of the plat the sections 
were indicated. That on this blank he' traced, 
in red- ink, the outside boundaries of the pro- 
posed consolidated district embracing the five 
districts known as districts 21, 22, 23, 24, and 
25, of Barry county. I find that the maps as 
prepared and posted by the superintendent 
were sufficient in form and in compliance with 
the statute* That the superintendent did not 
go into the proposed consolidated district for 
the purpose of interviewing the citizens and 
patrons of the school with regard thereto, but 
acted on information he then ha3 and that con- 
veyed in the petition presented to him. That, 
on the following day, May 28th, he went into 
the proposed consolidated district and posted 
eight notices of the school meeting to be held for 
the purpose of voting on the proposed consol- 
idation, and that, on the next day. May 29th, he 
posted four additional notices of the time and 
place of said election. That on May 28th be 
posted in said proposed district four plats of the 



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191 SOUTHWESTERN REPORTER 



(Mo. 



proposed district, hereinbefore referred to, and 
on the following day, May 29th, he posted two 
additional Dlats of said proposed district That 
on June 12th, the meeting was called to order 
by the superintendent, and, in calling the same 
to order, he announced that he did not have 
a plat of the proposed district with him, bnt 
he further stated that he thought he could draw 
a plat of said proposed consolidated district on 
the blackboard if he was furnished chalk for 
that purpose. That some one in the audience 
made the ' remark that that was unnecessary, 
as the boundaries of the proposed district were 
understood and that further explanation by the 
drawing of the plat was unnecessary. That no 
dissent was made to this suggestion, and the 
meeting thereupon proceeded to organise, and 
did organize, as provided by law, and proceeded 
to vote on the question of organising the said 
proposed district. That a hat, placed on a ta- 
ble in front of the chairman and secretary, was 
used as a ballot box, and that the voters were 
instructed by the chairman to pass by the ballot 
box in file and deposit their ballots. That this 
course was, in the main, pursued, but at times 
the file was not maintained and people other 
than those in line advanced and voted. I find 
that no confusion, however, existed, and. in the 
absence of the charge of fraud, I find that the 
election was conducted in all respects in sub- 
stantial compliance with the law. That, there- 
after, the vote was counted and announcement 
made that the vote stood 60 for the organisation 
and 47 against the organization of said propos- 
ed district That no dissent was made to this 
announcement, and no protest made by any of 
the parties present and no charge of fraud 
made at that or any subsequent tune. I find 
that the election was conducted in the manner 
prescribed by law. 

"I further find that the chairman and secre- 
tary of the meeting certified the proceedings 
and result of the election to the county superin- 
tendent of schools, and that a copy of same was 
filed with such superintendent and with the 
county clerk. I also find that a copy of the 
original petition asking the county superin- 
tendent of schools to call an election, together 
with copy of the plat prepared by the superin- 
tendent were filed with the county clerk of Bar- 
ry county, as provided by law. 

"I further find that the proposed new district 
comprised more than 12 square miles of terri- 
tory, and that there were more than 200 chil- 
dren of school age in the proposed consolidat- 
ed district 

"I further find that, after the vote on the 
organization, the meeting of June 12, 1913, pro- 
ceeded to elect directors, as provided by statute, 
and that the respondents, with the exception 
of Mr. Potter, were the directors elected on 
Jnne 12, 1913, and that the respondent Potter 
is now acting as a director of the district in the 
place of Mr. Ellis, one of the directors elected 
on June 12, 1918, who subsequently resigned. 

"I further find that the relator is an assessed, 
taxpaying citizen of the district, with a child 
or children of school age, and, as such, is inter- 
ested in the affairs of the school district in his 
territory. 

"I further find that the relator was present 
and participating in the election held on June 
12, 1913, and I further find that be was pres- 
ent and participating in an election held subse- 
quently to vote on the question of a site for 
the consolidated school building, and that he 
also participated in an election held at the same 
time to vote on the question of issuing bonds 
for the purpose of building and school grounds. 
I further find that the question of site was set- 
tled at this election, but that the proposition to 
vote bonds was defeated at that time, and that 
the relator was not present and did not partici- 
pate in a subsequent election held, at which 
bonds were declared carried. I find, as a mat- 
ter of law, that he is not estopped by reason 



of his participating in the elections as herein 
set forth." 

This finding fairly presents the facts of the 
case, although we shall, in the opinion, if we 
think necessary, refer to such Items of tes- 
timony as may be useful in illustrating oar 
legal conclusion. 

During the same term the court rendered 
judgment of ouster which Is brought before 
us in this appeal. 

I. V. McPherson and J. A. Potter, both ol 
Aurora, and J. S. Davis, of Cassville, for 
appellants. T. D. Steele, of Monett, for re- 
spondent 

BROWN, O. (after stating the facte as 
above). [1] 1. Before arriving at the real 
question in this case, It is necessary to deal 
with the entanglements which the defendants 
have spread In front of their position. They 
first question the Interest of the relator. 
They say, in effect that he Is an interloper 
and ought not to be permitted to disturb 
their tranquility in the performance of the 
duties which they have assumed with ref- 
erence to the education of his child. It la 
difficult to conceive how one can have a more 
vital or important interest than that which 
lies in the education of his children. He re- 
sides in the district and contributes by way 
of taxation to the maintenance of his school, 
and has the right to a voice in the application 
of his contribution and the contributions' of 
others to the maintenance of the facilities 
for that purpose. He is interested in their 
proximity to his home, and in every other 
question that arises in connection with the 
propriety of the action he is now contesting. 
There can be no doubt that his Interest 
qualifies him, with the leave of the court 
to question the validity of the organization 
of this consolidated district 

[2, 3] 2. It Is also said that the relator, 
if be had this right has estopped himself 
from asserting it by participating In the elec- 
tion by which the organization is said to 
have been effected: in the choice of a school- 
house site; and in an election held at the 
same time upon a proposition to issue bonds, 
which was defeated. 

We do not understand the defendants to 
contend that the relator, having seen a no- 
tice posted upon a tree near his residence, 
must search the other 36 square miles of 
field and woodland constituting the proposed 
district to ascertain if nine others had been 
similarly posted in other places before he 
could safely vote without estopping himself 
from contesting the validity of the notice. 
This part of the proposition carries Its, own 
answer. It Is, perhaps, suggested that no 
such reason applies to the two other elec- 
tions, almost Immediately called and held 
at the same time and place, and at both of 
which he voted. One of these was for the 
selection of a site for a schoolhouse at which 
his child must attend If he should avail hlm- 



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Ma) 



STATE v. POTTER 



59 



self of the educational privilege offered, and 
the other was upon a proposal to Issue bonds 
to erect It While we recognize the salutary 
principle that every person Is presumed to 
know the law, and that the duty often arises 
to promptly investigate facte which may 
affect one's legal relations with his neigh- 
bors, and also recognize the fact that the 
courts are the instruments by which justice 
Is distributed with considerable certainty 
and at reasonable cost, we have some sym- 
pathy with the reluctance of many other- 
wise exemplary people to place all their eggs 
in the single basket of litigation before at- 
tempting to save some of them by the use of 
simpler means. In this case, those desirous 
to maintain the organization of the district 
advanced with rapid strides in their effort 
to place an indebtedness upon relator and the 
other taxpayers which might give them an 
advantage In their contest for that purpose; 
and we are not prepared to say that relator's 
effort to prevent the accomplishment of this 
purpose by peaceful means at this election 
should estop him from maintaining this suit. 
We think it was brought with reasonable 
promptness, and that relator ought not to 
be barred from any remedy to which he 
might be entitled, on account of his lack 
of haste in entering upon the litigation. In 
tills connection, we have carefully examined 
all the evidence and find nothing which ought 
to estop the relator from insisting upon his 
legal right 

[4) 3. The respondents complain that the 
facts with reference to the notice of the elec- 
tion were proved by the oral testimony of 
the county superintendent of schools, on the 
ground that the acts of the superintendent 
and other proceedings can only be shown by 
the record. We And no record of the mat- 
ter whatever. Although the law under which 
the organization was attempted carefully 
provides for the preservation of the records 
of the proceedings, there is no return of the 
superintendent of schools of his own action, 
and the minutes of the meeting, which should 
have been the repository of some statement 
of the authority under which it was held, 
are silent The only statement that a vote 
was taken on any question is in the follow- 
ing language: "Vote called for by chairman. 
For organization 150, against organization 47." 
If it is necessary to prove the notice of the 
meeting by the record, it Is wholely lacking, 
and the officer whose duty It was to give it 
testifies upon the trial to the facts stated in 
the finding of the court we shall notice in the 
next paragraph. Without regard to the party 
upon whom the burden rested to show the 
facts relating to the notice of the meeting, 
we think there was no error in the admis- 
sion of this evidence. 

[I] The court found that on May 28th the 
county superintendent of schools went into 
the proposed consolidated district and post- 
ed eight notices of the meeting to be held 
for the purpose of voting on the proposed 



organization of the consolidated district and 
four plats of the proposed district and that 
on the following day, May 29th, he posted 
four additional notices and two additional 
plats. In other words, he posted only eight 
notices and four plats 15 days before the elec- 
tion, and the others only 14 days before the 
election. The question is thus presented 
whether the action of the voters In adopting 
the organization and electing the directors 
at that meeting was void for failure to give 
the statutory notice. The statute (Acts 1913, 
p. 722, | 3) provides that the county superin- 
tendent of schools shall call a special meet- 
ing of all the qualified voters of the proposed 
consolidated district for considering the 
question of consolidation. He shall make 
this call by posting within the proposed dis- 
trict ten notices in public places, stating the 
place, time, and purpose of such meeting. 
At least 16 days' notice shall be given, and 
the meeting shall commence at 2 o'clock p. m. 
on the date set The county superintendent 
shall also post within said district five plats 
of the proposed consolidated district at least 
15 days prior to the date of the special meet- 
ing. It being the exclusive province of the 
Legislature to determine, not only the pow- 
ers of this meeting, but the notice required 
to call it into existence, and the Legislature 
having plainly prescribed that this shall con- 
sist of ten notices posted at least 15 days 
before the proposed meeting, it does not lie 
within our province to revise that action. 
The question to be considered at the meeting 
was an Important one, vitally affecting the 
Interest of every resident of the proposed 
district; especially those having children or 
property situated therein. The notice con- 
stituted the foundation of the action; for 
how can a matter be said to have been sub- 
mitted to the voters until they are Informed 
of the time, place, and subject of their pro- 
posed action? As Is said In the American 
and English Encyclopedia of Law (2d Ed. 
p. 501): 

"Where a local option law provides for the 
posting of a designated number of notices in 
different public places within the district for 
which the election is to be held, for a specified 
length of time prior to the holding of the elec- 
tion, a failure to post the notices, or a posting 
of a smaller number than that designated, or 
the posting of all or a part of the notices for 
a length of time prior to the election less than 
that designated by the statute, is insufficient, 
and the election held pursuant thereto is void. 

And this Is the rule with reference to no- 
tices of all special elections. To the same 
effect is the decision of the Kansas City 
Court of Appeals in State v. Kampman, 75 
Mo. App. 188, and the Missouri cases which 
it cites. These are all direct authority on 
the point here presented, for this act is a lo- 
cal option law by which the people of a lim- 
ited district are called upon to determine by 
their votes whether they shall submit them- 
selves to the operation of laws not generally 
applicable to the people of the state. It is at 
least as Important to their interest as the lo- 



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60 



191 SOUTHWESTERN REPORTER 



cation of a road with respect to which this 
court recently said: 

"The statute reads: 'Notice of such Intended 
application shall be given by printed or writ- 
ten handbills, put up in three or more public 
places in such municipal township or town- 
ships, one of which shall be put up at the pro- 
posed beginning and one at the proposed termi- 
nation of said road, at least twenty days before 
the first day of a regular term of the county 
court at which the petition is presented, and 
which notice shall apply to and be binding on all 
persons and corporations whatsoever owning or 
claiming any Interest in or title to the lands, or 
any part thereof, over which such proposed road 
or change or relocation of road runs.' 

"If these notices had not been posted 'at least 
twenty days before the first day of a regular 
term of the county court at which the petition 
is presented,' then the county court had no 
jurisdiction in the matter, and. as the jurisdic- 
tion of the circuit court in such cases is purely 
derivative, it likewise had no jurisdiction. ' 
Stutz v. Cameron, 264 Mo. 340, 881, 852, 162 
S. W. 221; Whltely v. Platte County, 78 Mo. 
30,32. 

There Is nothing in the facts of this case 
to suggest hardship or Injustice In the appli- 
cation of this rale. The Legislature exhibit- 
ed a perfect comprehension of the necessity 
for a well-informed public sentiment In the 
determination of the Important question to 
be presented to the people, and Intrusted the 
duty of giving the necessary information to 
the superintendent Mr. Ellis brought him 
the petition at Cassvllle, and upon his advice, 
and the knowledge gained from having taught 
a term of school In one of the five districts 
included, he acted. What was hurrying him 
does not appear in the record; but he fixed 
the date and wrote his notices that day in 
Cassvllle, went out to the locus In quo In the 
morning, and was overtaken by night before 
completing the work of posting his ten no- 
tices. It is out of this hurry that the sub- 
ject-matter of this litigation has grown. It 
would evidently have been avoided by a little 
faithfulness and deliberation in the perform- 
ance of his statutory duty. 

We are not left to speculation as to the ef- 
fect of these two days' work. The communi- 
ty contained more than 200 children of school 
age, yet only 07 persons voted at the meet- 
ing. Disregarding this apparent discrepancy, 
we might conclude that the community was 
blessed In the size of Its families, were It 
not that, at a meeting held soon afterwards 
upon the proposition to dissolve the organi- 
zation, 140 votes were cast for dissolution 
and 2 against It. We note the circumstance 
In connection with the claim of respondents 
that, a full vote having been obtained, the 
failure to give the notice required was harm- 
less, and should be disregarded. 

We think the failure of die superintendent 
to give the notice In time and manner pre- 
scribed by the act left the meeting without 
authority to effect the organization of the con- 
solidated district, and that the defendants 
are therefore without authority to exercise 



the powers and perform the duties Of direc- 
tors. 

The judgment of the Greene county circuit 
court Is, accordingly, affirmed. 

RAILBT, O., concurs. 

PER CURIAM. The foregoing opinion of 
BROWN, C., is adopted as the opinion of the 
court All concur. 



COLLI SON et al. v. NORMAN et si 
(No. 17686.) 
(Supreme- Court of Missouri, Division No. L 
Dec. 20, 1916.) 

1. Judgment <8=»518— Collateral Attack— 
Action to Quiet Title. 

An action to quiet title is a collateral at- 
tack on a tax judgment affecting the property 
Involved. 

[Ed. Note. — For other cases, see Judgment, 
Cent. Dig. f| 961, 982; Dec. Dig. «=>518.] 

2. Appeal and Error «=>994(3>— Review- 
Questions or Pact— Tbial to Coust. 

. In an action tried to the court, the trial 
court is sole judge of the credibility of the wit- 
nesses and of the weight to be given their tes- 
timony, and its finding will not be disturbed, 
if there is any substantial evidence which sup- 
ports it 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. f§ 3904-3905%; Dec. Dig. 
«=>994(3).] 

3. Appeal and Ebbob «=» 1008(1)— Review — 
Evidence. 

Where the record of a default judgment for 
taxes shows that the recitals as to publication 
and default had been altered, and that there 
were other alterations in the descriptions of 
the land and the amounts found due, and tes- 
timony that such alterations appeared to be in 
a different handwriting from the rest of the 
record, and the party claiming under the judg- 
ment offered no proof as to when or by whom 
the alterations were made, the finding of the 
trial court that the judgment was void will not 
be set aside on appeal. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. { 3955; Dec Dig. <8=> 
1008(1).] 

4. Altebatton or Instruments <8=>27(1)— 
Presumptions— Tike or Alteration. 

Alterations and erasures of written instru- 
ments are presumed to have been made at the 
time of or previous to their execution, if noth- 
ing appears to the contrary; but if any ground 
of suspicion appears on the face of the instru- 
ment there is no such presumption, and the 
time of alteration must be proved as a fact 

[Ed. Note.— For other cases, see Alteration of 
Instruments, Cent Dig. §§ 230-239; Dec. Dig. 
«=>27(1).] 

5. Judgment <8=>328— Correction— Default 
Judgment. 

A judgment in rem, rendered upon construc- 
tive service only, cannot be corrected by a nunc 
pro tunc entry at a subsequent term, unless the 
defendant is served with proper notice and 
brought within the jurisdiction of the court 

[Ed. Note.— For other cases, see Judgment 
Cent Dig. g 628; Dec Dig. -8=326.] 

6. Taxation «=>642— Pbooeedinos fob Salb 

— Strict Constbuotion. 
Tax proceedings, especially when based on 
constructive Bervice, should be strictly con- 



etasFor other uses see same topic and KEY-NUMBER tn all Key-Numbered Digests and Indexes 



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Mo.) O0LL1SON 

■trued, where the rights of the citizens are In- 
volved. 

[Ed. Note.— For other cases, see Taxation, 
Cent. Dig. H 1806-1307; Dec. Dig. <*=»642.] 

Appeal from Clrealt Conrt, Stoddard Coun- 
ty ; w. S. O. Walker, Judge. 

Action to quiet title by A T. CoffiSon and 
another against W. W. Norman and others. 
Judgment for defendants, and plaintiffs ap- 
peal. Affirmed. 

This action was brought under section 
2535, R. S. 1909, to quiet title to the follow- 
ing described real estate In Stoddard county, 
Mo., to wit, the N. % and the S. E. % of 
section 35, township 24, range 12 E. The 
above is a part of the original swamp and 
overflowed lands of said county, which were 
granted by Congress to the state of Missouri, 
and by the latter conveyed to Stoddard coun- 
ty aforesaid. ' From Stoddard county, the 
land was conveyed by an Eltzroth patent— the 
same as that discussed by this court in Simp- 
son v. Stoddard County, 173 Mo. 421, 73 S. 
W. 700, and a number of other cases — to 
Joseph F. McDonald. From the latter the ti- 
tle passed by regular conveyances to Ira 
Clark, who received his deed therefor from 
Levi Wenger and wife, on April 9, 1872. On 
May 29, 1905, there was filed and recorded 
In the land records of Stoddard county a war- 
ranty deed, conveying said land from Ira 
Clark and wlfe to Wm. H. Clark. This deed 
Is dated April 18, 1873. On said 29th of May, 
1905, the will of Wm. H. Clark was filed and 
recorded in the land records of said county, 
purporting to convey the land In controversy 
to Annie M. Clark as the widow of said Wm. 
H. Clark. It appears from the testimony 
that said Wm. H. Clark died after the levy 
of the execution In the tax suit, but before 
the sheriff's sale thereunder. Respondents 
claim title under said Annie M. Clark. 

On March 12, 1887, an alleged judgment 
was rendered on constructive service, In the 
circuit court of Stoddard county, Mo., for 
back taxes on certain lands described In said 
Judgment for the years 1879, 1882, 1884, and 
1885. The amounts claimed to be due for 
taxes under said Judgment, and other Irregu- 
larities therein, are assailed and will be 
considered hereafter. The above Judgment 
purports to be against Ira Clark and Wm. H. 
Clark. An execution was Issued on this Judg- 
ment May 25, 1887, and on. September 5th 
•f same year the whole of said section 35, 
township 24, range 12 E., was sold under 
said Judgment and execution by the sheriff 
of said county to R. H. Jones and J. M. Mil- 
stead. D. W. Sanford, as sheriff of said 
county, executed on September 10, 1887, a 
deed to said R. H. Jones and J. M. Milstead 
for the whole of said section 35 for the ex- 
pressed consideration of $27. The plaintiffs 
deralgn title to the land In controversy 
through and under said sheriff's deed. The 
court files in the tax suit aforesaid against 
Ira Clark and Wm. H. Clark were lost The 
Issues in the case are simplified by the frank ' 



y. NORMAN 61 

and commendable statement of respondents* 
counsel in their brief, as follows: 

"We have no controversy with appellants 
upon many ef the matters set out In their brief, 
and are willing to submit the case entirely up- 
on the propositions hereinafter Bet forth as to 
the validitv of the tax judgment, the sheriff's 
sale, and Hie deed thereunder, thereby narrow- 
ing the scope of the issues of this case." 

A Jury was waived and the case tried be- 
fore the court. Plaintiffs prayed the latter 
to declare the* law as follows: 

(1) "The court declares the law to be that the 
judgment -for back taxes introduced into evi- 
dence is not void as against a collateral attack, 
and the court further declares the law to be 
that this is a collateral attack on said judg- 
ment" 

This instruction was refused. Plaintiff s 
also prayed the court to declare the law as 
follows: 

(2) "The conrt declares the law to be that the 
pretended sheriff's sale of the lands to Ringer 
aad Crumb was void, and that the only con- 
troversy in this case is as to who has the better 
title to the Joseph F. McDonald chain of title." 

Which declaration of law the court gave, as 
requested by the plaintiffs. The case was 
taken under advisement, until November 1, 
1912— during the September term, 1912, of 
said court— when final judgment was entered 
In favor of defendants. Plaintiffs filed a 
motion for a new trial, which was overruled, 
and the cause duly appealed by them to this 
court. 

Wammaek & Welbom, of Bloomfleld (Reyn- 
olds A Harlan, of St Louis, of counsel), for 
appellants. I. R. Kelso, of St. Louis, and 
Davis & Hardesty, of Cape Girardeau, for re- 
spondents. 

RAILEY, C. (after stating the facts as 
above). [1] I. This case was tried in the 
court below, without a Jury and without 
Instructions, except two, asked by plaintiffs, 
and one of which was given as asked by 
them. Their refused instruction reads as fol- 
lows: 

"The court declares the law to be that the 
judgment for back taxes introduced into evi- 
dence is not void as against a collateral attack 
and the court further declares the law to be that 
this is a collateral attack on said judgment." 

This suit is purely an action at law to quiet 
title to the 480 acres of land In controversy. 
There Is no question but what the tax judg- 
ment relied on by appellants is collaterally 
assailed In this 'proceeding, and the case 
must be disposed of accordingly. 

[2] It Is evident that the trial court, upon 
the facts disclosed by the record, held that 
the tax Judgment aforesaid was void, and 
that no title passed under the sale and sher- 
iff's deed pursuant thereto. If there was 
substantial evidence adduced at the trial, 
tending to impair the integrity of said tax 
judgment we are not at liberty to overrule 
the trial court, even if we should reach a dif- 
ferent conclusion as to the facts. In other 
words, the trial court, in cases of this char- 
acter, is the sole judge of the credibility of 



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191 SOUTHWESTERN REPORTER (Mo. 



62 

the witnesses and of the weight to be given 
their testimony. It only becomes our duty 
to determine whether the tax judgment 
aforesaid Is obnoxious to collateral attack in 
this proceeding, and whether there was any 
substantial evidence before the trial court 
which warranted It In declaring said judg- 
ment void. 

[S] The circuit court record containing the 
tax judgment has been deposited with the 
clerk of this court for our Inspection, and 
carefully examined by us. Among other 
things, the following Is. recited in said judg- 
ment: 

"It appearing to the court that the defend- 
ants have been duly and lawfully notified by 
publication in the Vindicator, a newspaper pub- 
lished weekly in Stoddard county, Missouri, for 
four weeks successively, the last insertion being 
at least four weeks before the first day of the 
next term of this court, and defendants, being 
called, oome not, out make default," etc. 

Where the above underscored words ap- 
pear, something else had been formerly writ- 
ten, afterwards erased, and the underscored 
words written at the places so erased. 
Charles D. Wilson, clerk of the circuit court 
of said county at the time of trial, was the 
only witness who testified In respect to the 
erasures, etc., in the tax judgment afore- 
said. His testimony was as follows: 

"Q. (handing book to witness). Look at this 
record of the judgment which appears in Book 
H, at page 328, and which purports to be a 
judgment entered on Saturday, the 12th day of 
March, 1887, in favor of the collector and 
against Ira Clark and William H. Clark, and 
you are asked to state to the court if you can 
state whether or not the words in pen and ink 
appear in the writing of that judgment as fol- 
lows: 'For four weeks successively, and also the 
words, 'witness N. P. Madden.' Isn't it true 
that those remarks or words were written over 
something that has been marked out, and which 
was not in the original judgment? A. Yes, sir. 
Q. I will ask you if it isn't true that the rec- 
ord show* that the judgment was against the 
northwest fourth of section 35? A Yes, sir. 
Q. And if it isn't true that it shows here that 
the NE. of the NW. have later been marked out 
and the word 'whole' in the same place is sub- 
stituted for the NW? A, Yes. sir. Q. The 
judgment shows on its face that they have 
struck out the NW. V* inserted the word 
'whole' in the same place? A. Well, the word 
'whole' is very plainly written, but it seems 
from the appearance of the record that an 
erasure appears thereunder. Q. And in the lat- 
ter part of the judgment, where it is rendered 
for taxes, here it says, 'for taxes, to be divested 
and decreed, and that the NW. % of Sec. 35, 
Twp. 24 and Rug. 12,' that is the property de- 
scribed? A. Yes, sir; that is the property de- 
scribed in that part of the judgment Q. Are 
you able to say, from an examination of that 
record where those alterations are, whether or 
not they were made by the same person, and 
where that is struck out and written over the 
same? A. Where the judgment recites service 
by publication and the words 'for four succes- 
sive weeks,' and the words 'witness N. P. Mad- 
den,' seem to be different from the record entries 
in which the judgment is really written. But, 
of course, that is all I know about it, Q. Isn't 
it also apparent that the amount of the judg- 
ment has been stricken out, and the total chang- 
ed in the figures? A. The total indicates an 
erasure, like the figures might have been made 
over." 



After a careful examination of the above 
judgment, we are not prepared to assert that 
Wilson is Incorrect as to the conclusions and 
facts testified to by him as aforesaid. It Is 
manifest that, where the words "for four 
weeks su" (successively), now appear, some- 
thing else was written and erased. It Is evi- 
dent that the portion erased did not express 
the same idea as the language now appearing 
supra, or it would not have been necessary 
to erase the same, and write In lieu thereof 
language calculated to show that defendants 
had been served with process, etc. In other 
words, we find that the most material por- 
tion of the Judgment, relating to jurisdiction, 
has been erased and something inserted In its 
place, for the purpose of showing that a valid 
publication had been made, which brought 
said defendants before the court. Other 
erasures in respect to important parts of the 
judgment appear, and in lieu of same differ- 
ent language used from that originally writ- 
ten where the erasures occurred. It is evi- 
dent, from an examination of the judgment, 
that it simply undertook to charge the N. W. 
Vi of section 35 with the payment of said tax, 
es, and that N. W. % was erased, except In 
one place, and the word "whole" written In 
lieu of same, to cover the entire section. Va- 
rious erasures occur as to the different 
amounts of taxes alleged to be due, and in- 
sertions made in lieu of same. After making 
the erasures and insertions aforesaid, the 
party who made same incorrectly set out the 
actual amounts alleged to be due in several 
Instances. 

[4] The foregoing and other erasures and 
Insertions appear to us suspicious, and no tes- 
timony was offered tending to remove such 
suspicion. The law relating to such erasures 
and Insertions Is clearly and forcefully stated 
by Judge Wagner In Paramore v. Llndsey et 
al., 63 Ma loc. dt 66, 67, as follows: 

"The ancient rule of evidence was therefor* 
to presume alterations and erasures of written 
instruments to have been made at the time of, 
or anterior to, their execution; and the weight 
of authority was decidedly in favor of the an- 
cient rule. Where an alteration or erasure ap- 
pears suspicious on its face, as if the ink differ, 
or the handwriting be that of the holder inter- 
ested in the alteration, it must be explained. If 
nothing appears to the contrary, the alteration 
will be presumed to be contemporaneous with 
the execution of the instrument. But if any 
ground of suspicion is apparent upon the face of 
the instrument the law presumes nothing, but 
leaves the question of the time when it was 
done, as well as the person by whom, and the in- 
terest with which, the alteration was made, as 
matters of fact to be ultimately found by the 
jury, upon proofs to be adduced by the party 
offering the instrument in evidence. 1 Greenl 
Ev. | 564." 

The above principle of law Is recognised as 
correct In other decisions of our own state, 
as well as elsewhere. Still well v. Patton, 
108 Mo. loc. dt 360, 18 S. W. 1075; Kelly v. 
Thuey, 143 Mo. loc dt 434, 45 S. W. 300; 
Powell v. Banks, 146 Mo. loc. dt 643, 644. 
48 S. W. 664; State ex ret v. Chick, 146 Mo. 



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loc dt 668, 669, 48 S. W. 829: Kalbach v. 
Mathls, 104 Mo. App. loc dt 304, 78 8. W. 
684 ; Cox v. Mignery & Co., 126 Mo. App. loc. 
dt. 682, 683, 105 S. W. 675; Exchange Bank 
T. Robinson, 185 Mo. App. loc. dt 586, 172 
S. W. 628; Slater v. Moore, 86 Va. loc. dt. 
80, 9 S. E. 419; Rogers v. Page et al., 140 
Fed. 596, 72 O. C. A. 164 ; Robinson v. Myers, 
67 Pa. 9; Foster v. Alden, 21 Mich. 507; 
Dodge v. Haskell, 69 Me. 429; Catlln Coal 
Co. v. Lloyd, 180 I1L loc dt 404, 405, 64 N. 
E. 214, 72 Am. St Rep. 216; Feugh v. Mitch- 
ell, 3 App. Cas. D. C. loc dt 325; Cox v. 
Palmer, 1 McCrary, 431 ; Am. & Eng. Ency. 
of Law (2d Ed.) 274. • 

The plaintiffs rely upon the tax Judgment 
as a chain In their title. They offered no 
evidence to explain said erasures and inser- 
tions, or to account for same. We are not 
satisfied, from the testimony before us, that 
the court acquired jurisdiction over the per- 
sons of the defendants in the tax case, as the 
tax judgment before us was originally written 
m the record. Nor are we satisfied, from an 
Inspection of the tax judgment that the In- 
sertions at the places of erasure are In the 
same handwriting as the other written por- 
tions of said Judgment We are not satisfied, 
from looking at the record, that the inser- 
tions, where the erasures occurred, were 
written with the same Ink as the remainder of 
said judgment. Upon the record before us, 
in Tiew of the authorities aforesaid, we are 
of the opinion that the trial court committed 
no error in refusing plaintiffs' Instruction, 
and declaring the tax Judgment aforesaid 
void. 

[6] IL Appellants In their brief have dted 
a number of authorities holding that where 
clerical errors appear of record, and the 
court, by nunc pro tunc entries, would be 
justified In correcting same, we should dis- 
pose of the case as though such corrections 
bad been made. We are not satisfied that 
the erasures in the tax judgment were made 
at the time the lodgment was written. Nor 
is there anything before us to Indicate that 
these changes were not made at a time sub- 
sequent to the term of court when the original 
judgment was entered. The authorities re- 
lied upon do not apply In a case of this char- 
acter. If the defendants in the tax suit were 
ever served at all, It was simply by publica- 
tion, and no appearance entered. If a Judg- 
ment In rem is rendered upon constructive 
service only, it cannot be amended at a subse- 
quent or different term by a nunc pro tunc 
entry — even if there Is something on the rec- 
ord to amend by — utiles* the defendant Is 
served with proper notice and brought with- 
in the jurisdiction of the court We have 
formerly held that where a defendant is serv- 
ed by publication only, and enters no ap- 
pearance, the plaintiff cannot materially 
amend his petition and obtain a valid judg- 
ment thereon, without bringing defendant be- 



fore the court on new process. Hlnkle v. 
Lovelace, 204 Mo. loc. dt 226, 102 S. W. 
1015, 11 L. R. A. (N. S.) 730, 120 Am. St Rep. 
698, 11 Ann. Cas. 794; Cooper v. Gunter, 
215 Mo. loc. dt 664, 114 8. W. 943. 

[I] Tax proceedings, and especially when 
based upon constructive service, should be 
strictly construed, where the rights of the 
citizen are involved. The trial court upon 
legal evidence offered by respondents, held 
that the tax judgment aforesaid was void. 
It was the province of the lower court to pass 
upon this question, and its judgment Is con- 
clusive on this appeal. 
, III. Other questions are raised and dis- 
cussed in the briefs of counsel; but 1b view 
of the conclusions heretofore reached, we do 
not deem it necessary to consider or pass 
upon same. 

The ruling of the trial court In refusing 
plaintiffs' instruction, as well as its judgment 
in behalf of defendants, meets with our ap- 
proval, and Is accordingly affirmed. 

BROWN, 0., concurs. 

PER CURIAM. The foregoing opinion of 
RAILET, 0., Is hereby adopted as the opin- 
ion of the court. All concur. 



RICHARDSON v. DELL et al. (No. 18202.) 

(Supreme Court of Missouri, Division No. 1. 
Dec. 20, 1916.) 

1. Judgment «J=»713(2)— Res Judicata. 

Where, in a former case between the same 
parties, the petition made the same allegations 
down to a certain point plaintiff is concluded by 
the former adjudication, not only as to the ques- 
tions decided therein, bnt as to all matters with- 
in the issues. 

[Ed. Note.— For other cases, see Judgment, 
Cent. Dig. || 1063, 1066, 1099, 1241; Dec. Dig. 
«=713(2).] 

2. Judgment «J=»744— Res Judicata— Forfei- 
ture of Contract— Duty to Pat Taxes. 

Where a former adjudication decided that a 
mining company could withdraw from its con- 
tract of purchase, deed being held in escrow 
until full payment and, upon forfeiting pay- 
ments made, could not be held for further pay- 
ments, plaintiff's present petition, alleging in- 
jury because of purchasers neglect to pay min- 
ing taxes which resulted in forfeiture of the 
property, did not state a cause of action, as no 
duty was shown to rest upon pnrcbasers to pay 
such taxes. 

[Ed. Note.— For other cases, see Judgment 
Cent. Dig. || 1278-1281; Dec. Dig. «=>744.] 

8. Judgment «=»589(2)— Res Judicata— Tobt 

or Contract. 
Where plaintiff's petition alleged the same 
cause of action as that decided adversely in a 
previous case between the same parties, assert- 
ing that the present case is one of tort instead 
of contract, demurrer will be sustained thereto. 

[Ed. Note.— For other cases, Bee Judgment, 
Cent. Dig. II 1062-1065, 1101; Dec Dig. «=» 
589(2).] 

Appeal from St Louis Circuit Court; Dan- 
iel D. Fisher, Judge. 



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191 SOUTHWESTERN REPORTER 



Action by Augusta Richardson, admlnistra-, 
trix of the estate of David P. Richardson, 
against John Dell and others. Judgment 
for defendants, and plaintiff appeals. Af- 
firmed. 

This action was commenced by above- 
named plaintiff, as administratrix, etc, 
against said defendants, in the circuit court 
aforesaid, on January 17, 1913. The defend- 
ant Dee was not served with process and 
made no appearance to the action. Defend- 
ant Dell demurred to the petition, and al- 
.leged the following grounds in support of 
same: First. Because the petition does not 
state facts sufficient to constitute a cause 
of action against this defendant . Second. 
Because the allegations in the present peti- 
tion are the same as those in the case of same 
plaintiff against the same defendants, decid- 
ed by this court in 245 Mo. 317 et seq., 149 
S. W. 15, except the additional averment in 
the present petition, alleging that plaintiff 
is entitled to recover $74,200 on account of 
defendants' failure to pay the taxes on said 
mining property, by reason of which it was 
forfeited to the republic of Mexico. 

Third. Because the alleged cause of action 
set forth in plaintiff's petition, in the case 
at bar, is the same as that alleged in the 
case of same plaintiff, against the same de- 
fendant, which was tried in the circuit court 
aforesaid, decided by the latter in favor of 
said defendants, appealed to the Supreme 
Court and affirmed on June 20, 1912. 245 Mo. 
317, 149 S. W. 15. 

No question is raised as to the right of 
defendant to present, by demurrer, a plea 
of former adjudication; and as the appel- 
lant in her brief concedes tbat the present 
petition, down to the allegation in respect to 
the forfeiture of said mining property to the 
republic of Mexico on account of the non- 
payment of taxes thereon, is identically the 
same petition as that described in the above 
case reported in 245 Mo. 317 et seq., 149 
S. W. 15, between the same parties, we will 
deal with the case accordingly. Both peti- 
tions are set out in parallel columns of de- 
fendants' brief, and are shown to be the 
same down to above-mentioned point We 
also have before us the original abstract of 
record and briefs filed in the former case. 
It not only appears that the petitions, as 
above indicated, are the same, but the propo- 
sitions and authorities cited ip the original 
brief of plaintiff in said cause are the same 
as those in the present brief of appellant, 
except Hannerty v. S. Theater Co., 109 Mo. 
297, 19 S. w. 82, a suit in equity, which is 
not contained in the original brief. In the 
former trial, it appears that both the above- 
named defendants, Dee and Dell, as well as 
a number of other witnesses, were produced 
by plaintiff and testified In the cause. We 
have carefully examined the opinion of Com- 
missioner Brown in the former case, which 
was approved by this division, and are sat- 
isfied with, and hereby adopt, his statement 



of the Issues, pleadings and testimony, as 
set out In 245 Mo. lot dt 820 et seq, 149 S. 
W. 15. That part of the petition relating to 
the forfeiture of said mining property to 
the republic of Mexico on account of the al- 
leged nonpayment of taxes will be consid- 
ered in the opinion. It appears from re- 
spondents' statement that the foregoing de- 
murrer was sustained by the trial court on 
June 16, .1913. Plaintiff refused to plead 
further, and on' .September 25, 1913, Judg- 
ment was rendered in favor of defendant 
Dell on the demurrer aforesaid. From this 
judgment, plaintiff has appealed the case to 
this court 

Joseph Wheless, of St Louis, for appel- 
lant Jamison & Thomas, of St. Louis, for 
respondents. 

RAILEY, C. (after stating the facts as 
above). L In considering the question of 
res adjudicate, we have carefully examined 
the record, briefs, and opinion in the former 
case between these same parties, based on 
the same allegations, down to the paragraph 
relating to alleged loss of the mining prop- 
erty for nonpayment of taxes. We are sat- 
isfied with the conclusions reached in the 
former case, where the same petition was 
before the court, and the testimony of plain- 
tiff offered and considered in support of same. 
We see no reason for departing from any- 
thing determined or said in the original pro- 
ceeding, and hence adopt the opinion and 
Judgment therein as conclusive against plain- 
tiff, In respect to all matters which come 
within the purview of the former petition. 

In the recent case of Idalia Realty & De- 
velopment Co. v. Norman, 259 Mo. loc dt 
631, 632, 168 S. W. 749, 753, this court said: 

"We are satisfied with the conclusion at which 
we then arrived after mature consideration and 
careful investigation; and, second, the former 
adjudication of the same question in the. former 
suit between the same parties, upon the same 
evidence (the paper itself), is, even though the 
previous action was ejectment conclusive in 
this. While a judgment in an ejectment suit is 
not a bar to another suit for the same premises, 
the action being only possessory, yet when the 
title is in issue, and the right of possession only 
an incident it has all the consequences of an 
ordinary suit, when the parties are the same, 
the land is the same, and the evidence in sup- 
port of the respective titles is the same. Me- 
Anaw v. Clark, 167 Mo. 443 [67 S. W. 249}: 
Potter v. Adams, 143 Mo. 665 [45 S. W. 1128].'* 

[1] The plaintiff is not only concluded by 
the former litigation as to all the. questions 
within the pleadings decided therein, but as 
to every other matter fairly within the Issues 
in said cause. Harrison v. Jackson Co., 187 
S. W. loc. dt 1184, 1186 ; Barnhart v. Little, 
185 S. W. loc. dt 17V, and cases dted; Mo- 
Lure ▼. Bank, 268 Mo. loc. dt. 136, 172 S. W. 
386; Bines v. Bines, 243 Mo. loc. dt 495, 
147 S. W. 774; Tie & Timber Co. v. Pulllam, 
237 Mo. loc dt 18, 139 8. W. 144; Emmert 
v. Aldrldge, 231 Mo. loo. dt 128, 129, 132 8. 
W. 1060; Spratt v. Early, 199 Ma loc. dt 
500, 97 8. W; 925; Donnell v. Wright 147 



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Ma) 

Mo. loc. dt 647, 49 S. W. 874; Mo. Pac. Ry. 
Co. v. Levy, 17 Ma App. loc dt 607, 608. 

Keeping In mind the law as above indicat- 
ed, we will proceed to ascertain what was 
actually decided In the former litigation. 

II. Commissioner Brown, speaking for this 
court, in 245 Mo. loc. dt 881, 832, 149 S. W. 
15, 18, 19, said: 

"Whatever is involved in this suit grows out 
of the contract between Richardson and the 
Cacoma Mining & Smelting Company dated Oc- 
tober 1. 1906, by which he sold or agreed to sell 
to it his mining properties in Mexico. The 
meaning and effect of that contract lies at the 
foundation of every question in the case. It not 
only provides in terms that the property which 
it affects shall not pass until fully P&id for, but 
it is placed in escrow with the Commonwealth 
Trust Company to be delivered only upon the 
full performance of its terms. The written con- 
tract with the depository is a part of the trans- 
action and must be read in connection with the 
contract of sale. No interest which Mr. Richard- 
son may have had in the property which would 
have .otherwise passed to his heirs at his death 
was conveyed by these instruments. Nor did 
the conveyance by Mrs. Dee to the defendant 
Dell, in which Mann concurred by a separate 
deed, deprive Mr. Richardson of any title or 
interest he may have had in the property. It 
could only operate, under the circumstances, to 
release such title or interest as the grantors 
had and to substitute Mr. Dell for themselves in 
their relation to Richardson. 

"It follows that the real foundation of the 
controversy is the purchase price reserved in 
the contract between Richardson and the Ca- 
coma Company, and that Mrs. Richardson, as 
the administratrix with the will of her deceased 
husband annexed, is the proper party to sue with 
reference to it ; and she asserts that defendants 
are liable to her in damages because they have 
wrongfully deprived her of it by acts which she 
characterizes as conspiracy and fraud." 

In discussing the damages, provided for in 
the contract between Richardson and th*e 
Cacoma Company, on page 338 of 246 Mo., 
on page 19 of 149 S. W., he said: 

"The damages of the vendor are liquidated by 
a forfeiture of all amounts paid up to the time 
of default, so that the vendee escapes with a 
burden which he has already sustained to its 
full extent. The loss which the vendee may have 
sustained in the development of the property 
is liquidated by the returns already produced 
by the work done." 

On page 834 of 246 Mo., on page 20 of 149 
S. W., he continues as follows: 
" "In the case now before us, the contract, as 
we have already seen, provides distinctly that 
the title to the property shall not pass until the 
entire amount of the purchase price has been 
paid, and also specifies that the deed shall be 
retained in the hands of the depositary as an 
escrow. These provisions amount simply to an 
agreement to convey when the purchase price 
shall have been paid. Until the happening of 
that event, the title remains in the grantor, and 
upon his death it descends to his heirs subject 
to the equitable interest created by the contract 
of sale.' 7 

On page 336 of 245 Mo., on page 20 of 149 
a W., it is farther said: 

"So that the Cacoma Mining Company had 
the right, without giving any reason therefor, to 
withdraw upon condition of forfeiting all sums 
that it had already paid. * * * It being op- 
tional with the purchaser whether he should Keep 
up his payments or not we do not think the 
administratrix of Richardson has any interest 
upon which she can maintain this action." 

191 8.W.-5 



65 

Having determined the issues aforesaid in 
the former litigation, under this same peti- 
tion — except in respect to nonpayment of 
said taxes — against the plaintiff; and still 
being of the opinion that the issues In said 
controversy were properly dedded, it leaves 
for our consideration the question as to 
whether, with said issues dedded adversely 
to plaintiff, the remainder of the petition In 
the case at bar states any cause of action 
against defendant DelL 

[2] III. That part of the petition in the 
case at bar, which relates to the nonpayment 
of taxes on the part of defendant Dell, charg- 
es, in substance: That under the mining 
laws of Mexico all mines and deposits of min- 
eral belong to the federal government and 
are granted after denouncement to private 
parties upon the condition of the payment 
by such party or his assignee of an annual 
mining tax of $8 for each unit of area of 
which the mining claim Is composed. That 
said annual mining tax Is, pay able In three 
Installments of four months each, beginning 
with the 1st days of November, March, and 
July of each year. That said tax Is due to be 
paid during the first month of each of said 
periods; and, if not so paid, the owner of 
said mining property Incurs a nne equal to 
00 per cent of the amount of the tax, If 
paid during said second month; if not paid 
during said second month, but paid in said 
third month, the fine is 100 per cent, or dou- 
ble the amount of the tax doe'; that, If said 
taxes and penalties are not paid within said 
third month, the mining property aforesaid 
is forfeited to the federal government with- 
out any recourse, and said mining property 
Is entirely lost to such owner, and Is sub- 
ject to denouncement by any other person, 
but not by the person so In default Said 
law is designated as articles 6 and 6 of the 
law of June 6, 1892; and article 22 of the 
regulations of June 80, 1892. The remainder 
of said petition reads as follows: 

"And plaintiff states that, upon the wrongful 
acquisition as aforesaid of the mining property 
by the said defendant Dell, he became under the 
obligation to make and keep up the payment of 
the said mining taxes due and payable as above 
recited on the said several mining properties 
amounting to several hundred dollars per an- 
num; that the said defendant shortly there- 
after failed and refused to pay within the legal 
term the said mining taxes due on the said sev- 
eral properties, as a result of which the same 
were forfeited according to law and reverted to 
the Mexican government and were entirely 
lost to the said defendants and to all parties 
interested or concerned in the title or ownership 
of the same, including the estate of the said 
David P. Richardson. 

"Wherefore plaintiff brings this suit in tort 
against the said defendants John Dell and John 
Dee and prayB judgment against them in the 
sum of $74,200, together with costs of this suit" 

We hdd In the former litigation, as shown 
by the foregoing quotations from Judge 
Brown's opinion, that the title to the mining 
property In controversy remained In Richard- 
son, and was to remain there until the entire 



RICHARD80N V. DELL 



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66 



191 SOUTHWESTERN BE PORTER. 



purchase price had been paid. It was said 
by Judge Brown: 

"These provisions amount simply to an agree- 
ment to convey when the purchase price shall 
have been paid. Until the happening of that 
event, the title remains in the grantor, and upon 
his death it descends to his heirs subject to 
the equitable interest created by the contract 
of sale." 

Under our former ruling, the legal title to 
said mining property was In Richardson, and 
descended to his heirs. 

Under the former litigation, this plaintiff, 
as administratrix aforesaid, sought to hold 
Dell and Dee liable for $74,200, the same 
amount now sued for, as damages, on the 
ground that they had wrongfully deprived 
her of said property through fraud and con- 
spiracy. This issue, after mature delibera- 
tion by the court, was decided adversely to 
plaintiff and in favor of said defendants. 

The above allegation, that defendant Dell 
became under obligation to pay said min- 
ing taxes, is simply the statement of a legal 
conclusion, and not admitted by the demur- 
rer to be true. If Dell acquired Richard- 
son's title and became the legal owner of 
said property, then no right of action could 
arise in favor of plaintiff as administratrix 
or otherwise against Dell, as for a tort, in 
falling to pay taxes on his own property, 
even if it were forfeited to the republic of 
Mexico by reason thereof. In order there- 
fore that the petition herein should have 
stated a good cause of action, based upon 
the alleged failure of defendant Dell to pay 
said mining taxes, it should have specifically 
alleged the facts, which disclosed a legal du- 
ty, upon the part of Dell, to pay said taxes, 
for the benefit of plaintiff or the Richardson 
heirs. The petition herein fails to state a 
good cause of action In respect to above mat- 
ter, and hence the demurrer thereto was 
properly sustained. State ex reL v. Rail- 
road, 240 Mo. loc cit 48, 144 S. W. 1088, 
and cases cited; Coal ft Iron Co. v. Long, 
231 Mo. 605-614, 133 S. W. 35; Gibson v. 
Railroad, 225 Mo. 478, 125 S. W. 453; Sho- 
honey v. Railroad, 223 Mo. 649, 122 S. W. 
1025 ; Donovan v. Boeck, 217 Mo. loc cit 83, 
116 S. W. 543 ; Martin v. Castle, 193 Mo. loc. 
cit. 194, 91 S. W. 930; Mallinckrodt Chemi- 
cal Works v. Nemnlch, 169 Mo. 388, 69 S.' 
W. 355; Sidway v. Missouri Land & Live 
Stock Co., 163 Mo. 372. 373, 63 S. W. 705; 
Schiffman v. Schmidt, 154 Mo. 204, 55 S. W. 
451; Pier et al. v. Helnrichoffen et al„ 52 
Mo. 333 ; Clark v. Dillon et al., 97 N. X. 370. 

[3] IV. Aside from the question of taxa- 
tion, just disposed of, the balance of the pe- 
tition recites the same cause of action de- 
cided in the former case adversely to plain- 
tiff. She is now relying upon the same au- 
thorities dted in the former trial, and in- 
vites a reconsideration of our former rul- 
ing, because of her mere assertion in the pe- 
tition that the present suit is an action of 
tort, while It is alleged the former action 



was different. We formerly had before us 
the parties in interest, as well as the sub- 
ject-matter of said litigation. The same 
facts now relied on in petition, except as to 
taxes, were before the court in the former 
case. The latter was heard upon plaintiff's 
evidence, judgment rendered for defendants 
therein, and affirmed by this court. It Is the 
same cause of action with an alleged new 
name. 

The trial court reached & correct conclu- 
sion in sustaining a demurrer to plaintiff's 
petition, and Its judgment is, accordingly, 
affirmed. 

BROWN, a, concurs. 

PER CURIAM. The foregoing opinion of 
BAILEY, C., is hereby adopted as the opin- 
ion of the court. All concur; BOND, J., In 
result 



FRIESZ v. BUTCHER et al (No. 18213.) 

(Supreme Court of Missouri, Division No. 1. 
Dec. 20, 1916.) 

1. Appeal and Erbob <8=»1008(1)— Review — 
Decision or Coubt Without Jttby. 

In an action of ejectment, where the ease 
was tried without a jury and without instruc- 
tions, the trial court's decision is conclusive, un- 
less the Supreme Court can declare as a matter 
of law, on the undisputed facts disclosed by the 
record, that plaintiff has failed to make out bis 
case. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. H 3955, 3957 ; Dec. Dig. «=» 
1008(1).] 

2. BOUNDABIXS «=>3(4) — BoUN DABUS OF 

Land Devised— Monument. 
Testator's will, devised to his son for life all 
that part of certain land "lying east of a ditch 
running north and south through said tract of 
land, containing ten acres, more or less." A 
codicil to the will read that testator revoked 
so much of paragraph 4 as referred to a certain 
tract of land willed to his son under certain 
conditions, and willed to him the land described 
in such paragraph as his absolute property. 
Held, that testator intended the ditch to be the 
western boundary of the land devised to the son, 
whether there were 10 acres, more than 10, or 
less than 10 acres actually on the east side of 
the ditch, since even in cases of doubt as to 
whether the boundaries are conflicting, the nat- 
ural monuments, referred to in an instrument, 
should determine the boundaries, rather than 
the call in general terms for' a given number of 
acres. 

[Ed. Note.— For other cases, see Boundaries, 
Cent Dig. §§ 14-18 ; Dec. Dig. «=»3(4).] 

Appeal from Circuit Court, Chariton Coun- 
ty; Fred Lamb, Judge. 

Action in ejectment by A. L Friess against 
J. W. Butcher and others. There was judg- 
ment for plaintiff, and defendants appealed 
to the Kansas City Court of Appeals, the 
cause being certified to the Supreme Court 
on account of title to real estate being Involv- 
ed. Cause reversed. 

This is an action in ejectment to recover 
possession of about 214 acres of land, lying 



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Mo.) FKTESZ r. 

In a wedge shape, and located In the south- 
west quarter of the northwest quarter of sec- 
tion 12, township 54, range 21; Charlton coun- 
ty, Mo., and more particularly described In 
the petition, as follows: 

Beginning at a point 11.65 chains east of the 
quarter section corner between section' eleven 
(11) and twelve (12), in township fifty-four (54), 
range twenty-one (21), in the county of Chariton, 
in the state of Missouri, thence due east on 
said line 3.26 chains, thence north 14.43 chains, 
thence south 11.30 west 6 chains, thence south 
13.30 west 8.80 chains to the place of beginning. 

The answer contains a general denial; an 
allegation of ownership In himself, and a 
plea of title by adverse possession under the 
ten-year statute of limitations. The reply is 
a general denial. 

Plaintiffs Case. 

Respondent offered in evidence the will of 
W. F. Seneker, dated October 5, 1899, enter- 
ed for probate on March 20, 1902, and record- 
ed In Charlton county aforesaid, on the same 
day. The second clause of said will provides 
for Nancy C. Seneker, wife of testator, 
among other things, as follows: 

" • * * I also will to her the use, control 
and product of the following described real es- 
tate composing my home place and described as 
follows, to wit: • • * Also, thirty (30) 
acres west part of southwest quarter of north- 
west quarter of section twelve (12) township 
fifty-four range twenty-one; * * * all in 
Chariton county, Missouri, to have and to hold 
the same during her natural life or so long as 
she remains my widow, but in the event that 
she marry again the farm above described to 
revert to my two daughters Jessie A. and Fran- 
cis A. Seneker with the rents and products there- 
of." 

Clause 8 of above will reads as follows: 
"I will and give to my two daughters Jessie 
A. Seneker and Francis A. Seneker in fee simple 
as their absolute property, the following real es- 
tate situate in Chariton county, Missouri, to 
wit: ♦ • • Also thirty (30) acres west part 
of the southwest quarter of the northwest quar- 
ter of section twelve (12) township fifty-four 
(54) range twenty-one (21) subject to the use 
of their mother Nancy C. Seneker as set forth 
in paragraph two' of this will." 

The fourth clause of said will Is In the fol- 
lowing language: 

"To my son Charles F. Seneker I will and be- 
queath all of that part of the southwest quarter 
of the northwest quarter of section twelve (12) 
township fifty-four (54) range twenty-one (21) 
lying east of a ditch running north and south 
through said tract of land, containing ten acres 
more or less, to have and hold during his natural 
lifetime and at his death to become the absolute 
property of his legal heirs at law." 

On April 14, 1900, testator added a codicil 
to said will, which reads as follows: 

"I hereby revoke so much of paragraph 4 in 
this will as refers to a certain tract of land 
willed to my son Charles F. Seneker under cer- 
tain conditions, and hereby will and bequeath to 
him land in said paragraph described as his 
absolute property to use, enjoy, sell or dispose 
of after my death as he pleases." 

Plaintiff likewise read in evidence a war- 
ranty deed, dated Novemher 19, 1909, execut- 
ed by the widow of W. F. Seneker, Francis A. 
Seneker, and Jessie A. Seneker and her hus- 



BUTCHER 6t 

band, to A L Frlesz, the plaintiff herein, 
conveying to him 30 acres, the west part of 
the southwest quarter of the northwest quar- 
ter of section 12, township 54, range 21. 

It was agreed between counsel that the 
land described in petition was In possession 
of defendant at the date of trial, and that 
defendant J. W. Butcher holds the fee-simple 
title to the lands conveyed by the will in 
evidence to C. F. Seneker, as set out In 
clause 4 of said will and described as: 

"All that part of the southwest quarter of the 
northwest quarter of section 12, township 54, 
range 21, lying east of a ditch running north 
and south through said tract of land, containing 
ten acres more or less." 

Thereupon plaintiff rested. 

Demurrer to Evidence, 

At the conclusion of plaintiff's case supra, 
defendant Interposed a demurrer to the evi- 
dence, which was overruled. 

Defendant's Evidence. 

Defendant read in evidence his deed from 
O. F. Seneker to himself, dated July 25, 
1902, conveying — 

"ten acres more or less, being that part of the 
southwest quarter of the northwest quarter 
of section 12, township 54, range 21, being and 
lying east of the Hickman Slough ditch, run- 
ning north and south through said tract of land 
and being the east part of said tract, line to be 
in the center of said ditch." 

The petition in this cause was filed August 
12, 1913, and the case was tried at the Sep- 
tember term, 1913. 

The evidence is conclusive that the ditch 
referred to by testator In paragraph 4 of his 
will, running north and south on west side 
of appellant's 10 acres, was there when the 
will was made, and so remained until it was 
widened. The evidence is likewise conclu- 
sive that defendant, in the fall of 1902, or 
spring of 1903, took possession of the 10 acres 
east of said ditch and continued in posses- 
sion of same up to the date of trial in Sep- 
tember, 1918. It appears from the evidence 
that in the spring of 1903, a fence was built 
and the north' half of same was put on the 
east side of the ditch, and west of appel- 
lant's land, andi the south half of the fence 
was put on the west side of the ditch, east 
of plaintiff's land; the fence crossing the 
ditch somewhere near the center. 

The trial court found for plaintiff, and en- 
tered Judgment In his behalf for possession 
of the land described In petition. ' The date 
of ouster, as found by the court, was Febru- 
ary 28, 1913. The case was tried without a 
Jury, and no instructions were asked except 
defendant's demurrer to plaintiff's evidence. 
Appellant filed his motion for a new trial and 
In arrest of Judgment, both of which were 
overruled and the cause duly appealed by 
him to the Kansas. City Court of Appeals, 
and by the latter certified to this court, on 
account of title to real estate being involved. 



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191 SOUTHWESTERN REPORTER 



J. A. Collet, of Salisbury, for appellant*. 
F. C. Sasse, of Brunswick, for respondent 

RAILBY, O. (after stating the facts as 
above). [1] I. As this is an action at law 
and the case was tried below wltbout a jury 
and without Instructions, the decision of the 
trial court is conclusive against appellant, 
unless we are authorized to declare as a mat- 
ter of law, on the undisputed facts disclosed 
by the record, that plaintiff has failed to 
make out his case. Hamilton v. Boggess, 63 
Mo. loc. dt. 251, 252; Schad v. Sharp, 95 
Mo. loc. dt 579, 8 S. W. 649; Bartlett v. 
Kauder, 97 Mo. loc. clt 859, 11 S. W. 67; 
Morrison v. Bomer, 195 Mo. 535, 94 S. W. 
524; Chilton v. Nickey, 261 Ma 282, 169 S. 
W. 978; Buford v. Moore, 177 S. W. loc. 
clt 872; Kllle r. Gooch et at, 184 S. W. 
loc. clt. 1160. 

[2] II. It Is dear to us that there was a 
ditch in existence running north and south 
through' said southwest quarter of the north- 
west quarter of section 12, township 54, 
range 21, when testator executed his will on 
the 5th of October, 1899, and that it so re- 
mained until after both the parties to this ac- 
tion acquired title to their respective inter- 
ests. The testimony of testator's wife and 
other witnesses leaves no room for doubt as to 
the existence of this ditch. The land devised 
to defendant's grantor under the fourth dause 
of said will is described as being on the east 
side of said ditch, and as containing 10 acres 
more or less. In our opinion, the ditch in 
existence when the will was made was in- 
tended by testator to be the permanent west- 
ern boundary of the land be was conveying 
to his son by the fourth paragraph and codi- 
cil of said will. On the other hand, we 
hold that the remainder of said 40-acre tract 
lying west of said ditch, at the date of the 
execution of the will, was devised to plain- 
tiff's grantors. The language used by tes- 
tator in paragraph four and the codicil of 
his will, clearly Indicates that he Intended 
the ditch to be the western boundary of the 
land thus conveyed, whether there was 10 
acres, more than 10, or less than 10 acres, of 
land, actually on the east side of the ditch. 
Even in cases of doubt as to whether the 
boundaries are conflicting, the natural monu- 
ments, referred to In the instrument should 
determine the boundaries, rather than the 
call In general terms for a given number of 
acres. Campbell v. Johnson, 44 Mo. 247; 
Ware v. Johnson, 66 Mo. 662; Baker v. 
Clay, 101 Mo. loc. dt 558, 14 S. W. 734; 
Whitehead v. Ragan, 106 Mo. 231, 17 S. W. 
307; Burnham v. Hltt 143 Mo. 414, 45 S. 
W. 368; Peterson v. Beha, 161 Mo. 513, 62 
S. W. 462 ; Whitaker v. Whitaker, 175 Mo. 
loc. dt 11, 74 S. W. 1029; Hendricks v. 
Vivion, 118 Mo. App. 417, 94 S. W. 318; Pos- 
ter v. Byrd, 119 Mo. App. 168, 96 S. W. 224; 
Silvers, Ex. of Mo. Titles, p. 122; Tiffany 
on Iieal Property, f 390. 



III. Other questions are discussed in the 
briefs, but we deem it unnecessary to consid- 
er or pass upon same. 

In view of the conclusions heretofore reach- 
ed, we hereby reverse the cause. 

BROWN, C, concurs. 

PER CURIAM. The foregoing opinion of 
RAILBY, 0., is hereby adopted as the opin- 
ion of the court All concur. 



MEEK t. HURST. (No. 18215.) 

(Supreme Court of Missouri, Division No. 1. 
Dec. 20. 1916.) 

1. Brokers *=>9— Termination or Relation 
—Inconsistent Agreement. 

Where defendant gave plaintiff written au- 
thority to sell farm as Bis agent, and later plain- 
tiff, with defendant's consent, purchased the farm 
himself, this agreement being inconsistent with 
their former relation, terminated the agency. 

[Ed. Note.— For other cases, see Brokers, 
Cent Dig. f 10; Dec. Dig. «sa&] 

2. Frauds, Statute of «=>118(2) — Suffi- 
ciency of Memoranda. 

Where defendant gave plaintiff signed writ- 
ten authority to sell farm containing a partial- 
ly incorrect description, and plaintiff later pur- 
chased farm himself for the minimum price 
agreed, taking a receipt for initial payment, 
also signed by defendant describing the farm 
by acres, referring to the authority to sell, this 
was sufficient memoranda as required by stat- 
ute of frauds. Rev. St. 1909, | 2783. 

[Ed. Note.— For other cases, see Frauds, Stat- 
ute of, Cent Dig. { 263; Dec. Dig. «=»118(2).] 

8. Appeal and Error «*=>684— Abstract or 

Record— Index. 
Where the petition, demurrer, and Judg- 
ment which constituted the entire printed ab- 
stract was without index required by rule 13 
(186 S. W. viii), and the court has suffered 
no inconvenience therefrom, the abstract will 
not be regarded as materially deficient 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. IS 2584, 2585; Dec. Dig. «=» 
584.] 

Appeal from Circuit Court linn County; 
Fred Lamb, Judge. 

Suit by B. J. Meek against John B. Hurst 
Judgment for defendant and plaintiff ap- 
peals. Reversed. 

This suit was Instituted December 24, 1909, 
In Livingston county, from which it was tak- 
en on change of venue to Linn county, where 
a general demurrer to an amended petition 
was filed and sustained, and the plaintiff de- 
clining to plead further, final judgment was 
entered for defendant from which this ap- 
peal Is taken. The amended petition contains 
two counts, one being for the reformation of 
the contract spedfic performance of which Is 
asked in the other. The pleading stated 
the facts upon which the plaintiff relied 
with much particularity and at considerable 
length. A very short synopsis will, how- 
ever, be sufficient to dearly present the points 
upon which the respective parties rely. The 



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MEEK v. HURST 



69 



contract relied on consisted of two written 
Instruments. The first Is as follows : 

"Authority to Sell. 

"No. . 

"I, John B. Hurst, of Ohula, P. O., Living- 
ston county, state of Missouri, hereby authorize 
B. J. Meek of Chillicothe, Mo., to sell the fol- 
lowing described real estate, situate in the 
county of Livingston, state of Missouri, to wit: 
a W. Vt.. Sec. 14, and 6% acres out of S. B. 
%, Sec 14, all in township 69, range 24, con- 
taming in all 165% acres, and to matte contract 
therefor in my name, subject to the condition 
hereinafter named. I agree to accept in full 
payment of said farm the sum of $3,900.00 net 
to me, and cure title. In payment of the above- 
mentioned sum net to me, I. agree to accept 

£- . All (or not less than $— all) cash. 

I would want $500.00 to bind sale, balance 
March 1, 1906. I agree to give possession of 
said premises March 1, 1906. 

"I agree in case of sale to give purchaser a 
general warranty deed to the above-described 
premises, and to furnish him a complete ab- 
stract, which shall show a fee-simple title in 
me. 

"This authority is irrevocable for a period of 
30 days from its date, after which it can be 
terminated by giving notice in writing of the 
intention to withdraw. 

"Witness my hand at Wagon Road, date 
April 26, 1905. J. B. Hurst, Owner." 

The petition stated: That the defendant 
being desirous to sell bis land the paper was 
prepared and signed by bun and delivered to 
tbe plaintiff, who was a real estate broker In 
Chilllcothe. Having failed to sell the land 
under this authority, plaintiff offered to buy 
It for himself for the sum of $3,900, the net 
price named In the instrument, fully explain- 
ing to defendant that be was purchasing for 
himself and not for another, and disclosing 
to him at the time all information that he 
had acquired up to that time, and that the 
defendant thereupon agreed to sell It to him 
for that price upon the same terms Included 
In the authority contained In the foregoing 
writing. That tbe defendant accepted said 
offer, and plaintiff thereupon paid him tbe 
$500, as required by the terms of said writ- 
ing, and defendant then made and delivered 
to plaintiff a receipt and memorandum of 
the same, which Is in words and figures fol- 
lowing : 

"May 9, 1905. Received of B. J. Meek $500.- 
00, in part payment of my land situated in Liv- 
ingston county, Missouri, consisting of 165% 
acres, in compliance with a contract entered 
Into by me the 25th day of April, 1905. J. B. 
Hurst, Owner." 

The contract therein referred to Is the same 
authority to sell above set out. That there 
was a mistake In the description In the fore- 
going authority to sell, of the small tract 
described as 6% acres, which was indefinite, 
and one acre thereof was In the northeast 
quarter of tbe section Instead of the south- 
east quarter. It Is this description which 
the plaintiff asks to be corrected. That on 
May 13, 1905, the defendant repudiated said 
contract of sale to plaintiff, and notified 
plaintiff that be would not be further bound 
thereby, and tendered back the $500 he had 
received from plaintiff, which plaintiff refus- 



ed to accept and Insisted on the performance 
of tbe contract and tendered to defendant tbe 
sum of $3,400 thereon, which defendant re- 
fused. That plaintiff has ever since been 
ready and willing to pay said $8,400, and 
again tendered It on March 1, 1906, and de- 
manded a deed, but that defendant refused 
either to receive the money or execute a 
deed which plaintiff then prepared and offer- 
ed him for execution, drawn In exact compli- 
ance with the terms of said contract. And 
plaintiff brings the money Into court and 
says that he is at all times ready to perform 
the same according to Its terms, and asks 
Judgment reforming the description of the 
6% acres of land imperfectly described as 
shown, and for specific performance of the 
contract on the part of defendant. 

Brcsnehen * West, of Brookfield, and J. M. 
Davis A Son and Paul D. Kitt, all of Chilll- 
cothe, for appellant Lewis A. Chapman, of 
Chilllcothe, for respondent. 

BROWN, C. (after stating the facts as 
above). 1. Tbe only question raised or pre- 
sented by the parties in this appeal Is upon 
the sufficiency of the petition as against a 
general demurrer. They go directly to the 
merits, and raise no question as to the form 
in which the plaintiff's case Is presented in 
tbe petition. 

The right of the plaintiff to the reforma- 
tion of the deed with respect to the descrip- 
tion of the 6% acres Is not Important In de- 
termining the correctness of the action of the 
court in sustaining the demurrer, for If the 
plaintiff would be entitled to specific per- 
formance upon the facts were this description 
sufficient, its Insufficiency would not preju- 
dice his right as to the remaining land. 
Meek v. Hurst, 223 Mo. 688, 696, 122 S. W. 
1022, 135 Am. St Rep. 531, and cases cited. 

[1] 2. The real and only question neces- 
sary to be determined is whether or not the 
writings pleaded are a sufficient memoran- 
dum of the contract of sale charged In the 
petition, under the provisions of section 2783 
of the Revised Statutes of 1909, which pro- 
vide that to sustain an action thereon, such 
agreement, "or some memorandum or note 
thereof, shall be in writing and signed by the 
party to be charged therewith, or some other 
person by him thereto lawfully authorized." 
The case cannot be classed with those in 
which a contract is made by an agent In be- 
half of an undisclosed principal, for the the- 
ory of tbe defense is that the defendant was 
his principal, and that plaintiff, being the 
agent of defendant could act In no other ca- 
pacity In that transaction. That the memo- 
randum of the contract on which the action 
is predicated means, and can only mean, that 
the plaintiff, acting jas such agent received 
the $500 paid by him from some unknown 
purchaser to be transmitted to his principal, 
and that parol evidence cannot be admitted 
to construe it otherwise. A complete answer 



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TO 



191 SOUTHWESTERN BBPOBTHJE 



(Mo. 



to this is that the agency was not coupled 
with an interest in the land, and might be 
terminated at any time by parol agreement 
of the parties, • and the petition expressly 
pleads snch an agreement. Mechem on Agen- 
cy, | 559. It follows that the sale, being an 
agreement between the parties Inconsistent 
with the existence of the agency, would itself 
terminate it. 

8. The petition states, in substance, and 
upon this demurrer we must assume it to be 
true, that the relation of principal and agent 
between defendant and plaintiff had been ter- 
minated by agreement made fairly and open- 
ly, with full knowledge of all circumstances 
growing out of the existence of that confiden- 
tial relation. 

[2] The only remaining question is wheth- 
er the two papers pleaded constitute a suffi- 
cient memorandum to charge the defendant 
upon the alleged agreement. The statute 
does not require the agreement to be in writ- 
ing, but that the agreement or some memo- 
randum or note thereof "shall be in writing 
and signed by the party to be charged there- 
with." In considering this question, as we 
must, solely from the standpoint of vendor 
and purchaser, we need not close our eyes 
to the fact that the former relation had once 
existed, that its creation was the object in 
mind when the "authority to sell" was writ- 
ten, and that its words were chosen for that 
purpose. Under the new arrangement the 
names of the parties and the subject-matter 
of the contract, the sale of the land, was 
plainly stated on the face of the receipt, 
which referred to the other paper, which con- 
tained a description of the land, the amount 
of the consideration, the time and terms of 
payment, the curing of the title and execution 
of the deed, in compliance with which the 
sale was to be made. This also was signed 
by the seller. The effect of this transaction 
was the same, upon the facts pleaded, as if 
the authority had been to a stranger and had 
expired by limitation upon its face, and been 
returned to the defendant, and by him deliv- 
ered to the plaintiff In connection with the 
receipt upon the consummation of this sale. 
Could there be any doubt that the papers 
would then plainly express the intention of 
the defendant to bind himself to make a 
deed conveying the premises for the same 
consideration payable to him in the same 
time and manner expressed in the "authority 
to sell"? 

The defense made by this demurrer is pure- 
ly technical. There is nothing in the con- 
tract of agency which, by any possible Inter- 
pretation, entitles the defendant to a greater 
consideration for his land than $3,900, or 
which Impose upon the plaintiff any duty to 
■ell it for more or to discriminate between 
purchasers. It was a simple agreement to 
convey to any purchaser the plaintiff might 
find on receipt of that sum. There is no eq- 



uity calling for any other than a reasonable 
construction of the contract stated in the pe- 
tition. We think tt^requlres an answer, and 
so rule. 

[S] 4. The defendant asks that the appeal 
be dismissed because the printed abstract of 
the record filed in compliance with rule 18 of 
this court (180 S. W. vlil) has no complete In- 
dex at the end thereof. We have suffered no 
Inconvenience because the petition, demurrer, 
and Judgment which constitute the entire 
printed abstract is without index. We think 
that In this case the abstract constitutes a 
substantial compliance with the rule. 

The Judgment of the circuit court is revers- 
ed, and the cause remanded for further pro- 
ceedings. 

PER CURIAM. The foregoing opinion of 
BROWN, 0., is adopted as the opinion of the 
court All concur. 



JORDAN et aL v. CHICAGO, B. & Q. R. CO. 
(Supreme Court of Missouri, Division No. 1. 
Dec. 20, 1916.) 

Courts «=»231(4)— Supreme Count or Mis- 
souri — Conflict with "Previous Deci- 
sion." 

A decision of a Court of Appeals upon a 
case transferred to it by another Court of Ap- 
peals under Laws 1909, p. 396, being a mere 
nullity because of the unconstitutionality of 
that law, is not a ''previous decision" of a 
Court of Appeals, conflict with which constitu- 
tionally authorizes a Court of Appeals to cer- 
tify a case to the Supreme Court. 

[Ed. Note.— For other cases, see Courts, Cent 
Dig. | 647; Dec. Dig. «=>231(4)J 

Appeal from Circuit Court, Putnam Coun- 
ty; Q. W, Wanamaker, Judge. 

Action by George Jordan and others 
against the Chicago, Burlington & Quincy 
Railroad Company. From Judgment for 
plaintiffs, defendant appealed. Affirmed by 
Kansas City Court of Appeals, and certi- 
fied. Retransferred to Kansas City Court of 
Appeals. 

The following is the per curiam opinion 
of the court of appeals: 

Plaintiff shipped a carload of horses from 
Lemon, Mo., to Buffalo, N. Y. The contract of 
shipment was with defendant, though the desti- 
nation was beyond its line and the horses were 
transferred to another railway carrier at Chi- 
cago, I1L, and a new contract entered into with 
the latter company. Plaintiff brought an action 
for damages against defendant, and obtained 
judgment in the trial court. 

There was a contract of shipment with defend- 
ant by which it appeared that there was an 
agreed valuation between the parties of $100 
per animal, and that in no case should there be 
a liability on the part of defendant above that 
sum. This provision was treated as of no effect 
by the trial court as shown by its action on 
instructions and the amount of the judgment. 
By so doing the act of Congress, known as the 
Hepburn Act, as amended (U. S. Comp. St. 
1913, I 8592, pars. 11, 12), was regarded as 
nullifying such provisions of the contract That 
amendment reads as follows: "That any com- 



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JORDAN v. CHICAGO, B. ft Q. R. OO. 



71 



mon carrier, railroad, or transportation com- 
pany receiving property for transportation from 
a point in one state to a point in another state 
shall issue a receipt or bill of lading therefor 
and shall be liable to the lawful holder thereof 
for any loss, damage, or injury to such property 
caused by it or by any common carrier, railroad, 
or transportation company to which such prop- 
erty may be delivered or over whose line or lines 
such property may pass, and no contract, re- 
ceipt, rule, or regulation shall exempt snch 
common carrier, railroad, or transportation com- 
pany from the liability hereby imposed: Pro- 
vided, that nothing in this section shall deprive 
any holder of such receipt or bill of lading of 
any remedy or right of action which he has 
under existing law. That the common carrier, 
railroad, or transportation company issuing such 
receipt or bill of lading shall be entitled to re- 
cover from the common carrier, railroad, or 
transportation company on whose line the loss, 
damage, or injury shall have been sustained the 
amount of such loss, damage, or injury as it may 
be required to pay to the owners of such proper- 
ty, as may be evidenced by any receipt, judg- 
ment, or transcript thereof.' " 

This statute has been construed by this court 
in Holland v. Railroad, 138 Mo. App. 702, 720, 
123 S. W. 987, as disallowing such contracts in 
toto. But the Springfield Court of Appeals, in 
McElvain v. Railroad, 151 Mo. App. 126, 151- 
165, 131 S. W. 736, decided differently, holding 
that such amendment merely prevented the in- 
terstate carrier from exempting himself from 
liability for the negligence of the connecting 
carrier, and that it did not prevent a contract 
that its liability should not go above the valua- 
tion of the article shipped winch had been agreed 
to by the shipper on sufficient consideration. 

The trial court followed this court, and we 
will affirm the judgment. But as our decision 
is in conflict with that of the Springfield Court 
of Appeals in McElvain v. Railroad, the case 
will be certified to the Supreme Court for final 
adjudication. 

The defendant likewise by its answer sought 
to raise a point involving the construction of 
the Constitution of the United States, and re- 
newed this in its motion for new trial. Whether 
this question was properly raised under the 
rulings of the Supreme Court will be for it to 
determine. 

O. M. Spencer, of St. Joseph, A. W. Mul- 
11ns, of Llnneus, Palmer Trimble, of Keokuk, 
Iowa, and M. O. Roberts, of St. Joseph, for 
appellant N. A. Franklin, of Unlonville, and 
Fogle & Fogle, of Lancaster, for respondents. 

BOND, J. I. This case was certified to 
this court by the Kansas City Court of Ap- 
peals in a per curiam opinion, setting out, In 
substance, that the action was one for dam- 
ages suffered by a carload of horses shipped 
by the plaintiff from Lemon, Mo., to Buffalo, 
N. X., under a shipping contract with the de- 
fendant, which transported the horses to 
Chicago, where they were delivered to an- 
other carrier under a new contract to take 
them to Buffalo, N. T. The contract of ship- 
ment showed an agreed valuation for $100 
for each horse and nonliability of the de- 
fendant above that sum. The Issues present- 
ed Involved the application of an act of Con- 
gress known as the Hepburn Act, as amend- 
ed. There was a judgment in the trial court 
for $850, In favor of plaintiff, which was du- 
ly appealed to the Kansas City Court of Ap- 
peals, and affirmed by that court, but certi- 
fied to this court for final determination, for 



the reason that the Springfield Court of Ap- 
peals had construed the amended Hepburn 
Act In a contrary way in the case of McEl- 
vain v. Railroad, 151 Mo. App. 126, 131 S. W. 
736. See per curiam opinion of Kansas City 
Court of Appeals on file In this case. 

n. After the creation of the Springfield 
Court of Appeals, under authority delegated 
to It by the Constitution, the Legislature, by 
the act of June 12, 1909 (Laws 1909, p. 396), 
provided for the transfer of causes by the 
judges of one Court of Appeals to another. 
In pursuance of that act the St Louis Court 
of Appeals transferred the case of McElvain 
v. Railroad to the Springfield Court of Ap- 
peals, which latter court assumed jurisdio 
tlon and rendered a decision therein on No- 
vember 10, 1910, but certified the case to this 
court for final, determination because of a 
conflicting decision rendered by the Kansas 
City Court of Appeals. Thereafter (Decem- 
ber 31, 1910) this court In banc, in a case 
challenging the jurisdiction of the Springfield 
Court of Appeals of another case which had 
been similarly sent to it from the St. Louis 
Court of Appeals, held that the act of the 
Legislature, authorizing such transfer by 
the judges of the courts of appeals from one 
Court of Appeals to another, was absolutely 
void, and vested no jurisdiction in the Spring- 
field Court of Appeals to hear or decide cas- 
es so sent to It State ex reL v. Nixon, 232 
Mo. 98, 133 S. W. 336. Thereupon this court 
transmitted to the St Louis Court of Appeals 
the said case of McElvain v. Railroad, so 
that It should exercise the jurisdiction vest- 
ed In it by the appeal originally taken to 
that court This the St. Louis Court of Ap- 
peals proceeded to do, and rendered a deci- 
sion and Judgment in said cause. McElvain 
v. Railroad, 176 Mo. App. 379, 158 S. W. 464. 

Although the decision of the Springfield 
Court of Appeals appears in the printed re- 
ports (151 Mo. App. 126, 131 S. W. 736, su- 
pra), It was a simple nullity after the deci- 
sion of this court In banc, to the effect that 
the Springfield Court of Appeals had no pow- 
er or jurisdiction to decide that case, and 
after this court sent that case back to the 
St. Louis Court of Appeals for final deter- 
mination. The views expressed by the 
Springfield Court of Appeals were not there- 
fore an authoritative expression of the law 
of this, state, nor were they a previous deci- 
sion of that court; for it had been conclu- 
sively adjudged that the Springfield Court of 
Appeals was not possessed of any Jurisdic- 
tion whatever In the cause of McElvain v. 
Railroad, supra. Clearly, therefore, what 
they wrote upon that subject had none of the 
Qualities of a decision of that case and, at 
most reflected the views of the law of the 
author of the opinion and his associates as 
to a matter not before them. 

It follows that the Kansas City Court of 
Appeals was not authorized, under the pro- 
vision of the Constitution relative thereto, to 



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191 SOUTHWESTERN REPORTER 



certify the present case to this court, and 
the cause must be retransferred to the Kan- 
sas City Court of Appeals for final deter- 
mination. 

The Issues presented In this case may now 
be resolved by the Kansas City Court of Ap- 
peals under the guidance of the "last previ- 
ous decision" of this court In banc (June 1, 
1915), wherein the construction given to the 
amended Hepburn Act by the Supreme Court 
of the United States has been adopted by 
this court Donovan v. Wells Fargo ft Co., 
265 Mo. 291, 177 S. W. 839. By applying the 
doctrine of that case to the issues presented 
in the present case, the Kansas City Court 
of Appeals will conform its ruling to the 
"controlling authority" provided by the Con- 
stitution for all cases In all Courts of Ap- 
peals to which it Is applicable. 

This cause Is accordingly retransferred to 
the Kansas City Court of Appeals. All con- 
cur. 



WILSON et al. v. HENDERSON et aL 
(No. 17517.) 

(Supreme Court of Missouri, Division No. 1. 
Dec 20, 1916.) 

1. Specific Pertobmance <8=>121(8)— Fraud 
in Contract — Evidence. 

In an action to compel specific performance 
of an agreement to exchange lands, the defense 
that such agreement was induced by fraudulent 
representations of plaintiff as to the number of 
acres under cultivation, the number of acres 
subject to overflow, etc., held supported by evi- 
dence. 

[Ed. Note.— For other cases, see Specific Per- 
formance, Cent Dig. { 890; Dec. Dig. «=» 
121(8).] 

2. Exchange or Property e$=>5 — Real Prop- 
erty— Rescission. 

Where in a land exchange transaction a con- 
tract was made June 4th to be consummated 
September 15th upon delivery of abstracts, etc., 
a repudiation and rescission thereof on August 
15th before abstracts had been delivered was 
sufficiently prompt. 

[Ed. Note.— For other cases, see Exchange of 
Property, Cent Dig. §§ 6, 6, 8-10; Dec Dig. 

8. Exchange or Property o}=>S(1)— Fraud- 
Examination or Property. 
The invalidity of a land exchange contract 
caused by fraudulent representations by one of 
the parties as to freedom of land from overflows 
was not affected by the fact that the induced 
party examined the land at the time ; there be- 
ing nothing patent on the face of the land then 
to indicate the falsity of the representations. 

[Ed. Note— For other cases, see Exchange of 
Property, Cent Dig. g 8; Dec. Dig. «=>3(1).] 

4. Exchange or Property «j=»5— Rescission. 

The rule requiring a rescinding party to ten- 
der back that which be has received, or restore 
the statu quo, could not be invoked as a defense 
in a case where after rescission the party notified 
ef the rescission himself procured the exchanging 
deeds, left in escrow with bis agents, to be re- 
corded, and money to be secured upon an appli- 
cation for a loan on the property to be taken in 
exchange; such application having theretofore 



been made by the rescinding party through the 
same agents. 

[Ed. Note.— For other cases, see Exchange of 
Property, Cent Dig. §S 5, 6, 8-10; Dec Dig;. 

Appeal from Circuit Court, Carroll County ; 
Frank P DivelMss, Judge. 

Action by R. O. Wilson and another against 
William Henderson and another. From Judg- 
ment for defendants, plaintiffs appeal. Af- 
firmed. 

On December 9, 1912, the above-named 
plaintiffs filed two suit in the circuit court 
of Carroll county, Mo., against above-named 
defendants. One of said actions was eject- 
ment to recover possession of 9.5 acres of 
land, located in the town of Bosworth, Car- 
roll county, aforesaid. The first count of 
second action was to enforce specific per- 
formance of an alleged contract between 
the parties hereto, dated June 4, 1912, relat- 
ing to the exchange of defendants' 9.5 acres 
of land aforesaid for 140 acres of plaintiffs' 
land In said county. The second count was 
for $250 alleged to be due plaintiffs under 
said contract. The third count was for the 
recovery of $250 claimed to be due plaintiffs 
on account of an alleged forfeiture upon the 
part of defendants in falling to comply with 
said contract 

Defendants filed identical answers in both 
cases, and, aside from the general denial 
contained In each, It Is averred with great 
particularity that plaintiffs and their agents, 
on June 4, 1912, while they and defendants 
were upon the 140 acres aforesaid, made 
false and fraudulent representations to de- 
fendants for the purpose of Inducing them 
to make said exchange! In respect to the 
value, condition, and boundaries of said 
land; that they were inexperienced and ig- 
norant of above matters, and, relying upon 
the truth of said representations, and be- 
lieving them to be true, they entered Into a 
contract for the exchange of the properties 
aforesaid, and on said 4th day of June, 1912, 
executed a warranty deed to plain tiffs for 
the 9.5 acres aforesaid; that said deed was 
left In the possession of plaintiffs' agents, 
for delivery to plaintiffs, on the consumma- 
tion of said contract of exchange, and on the 
delivery of possession of said 140 acres to 
defendants; that thereafter defendants dis- 
covered the falsity of plaintiffs' representa- 
tions aforesaid, and demanded a cancella- 
tion of said contract; that thereafter the 
said agents of plaintiffs, without the knowl- 
edge or consent of defendants, by plaintiffs' 
directions and with their connivance, filed 
the warranty deed executed by defendants as 
aforesaid for record in the office of the re- 
corder of deeds for said county, and the same 
was on August 24, 1912, recorded In Booh 
207 at page 588 of said records; that on the 
same date plaintiffs' said agents, without the 
knowledge or consent of defendants, and 



tftsaFor other coses see same topic and KEY-NUMBER In all Key-Numbered Digest* and Indexes 



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Ma) 

without their permission or procurement, fil- 
ed for record in said recorder's office a deed 
from plaintiffs to defendants purporting to 
convey to them said 140 acres of land ; that 
said last-mentioned deed was duly recorded 
in said Book 207 at page 689; that defend- 
ants bad no knowledge of the recording of 
said deeds; that the record of same was pro- 
cured by plaintiffs! in consummation of a 
fraudulent and wrongful purpose to defraud 
defendants of said 9.5 acres of land. It is 
further averred that defendants are now in 
possession of said 9.5 acres aforesaid ; that 
plaintiffs are now, and at all times, since the 
execution of said contract, have been, in the 
possession of said 140 acres of land, and re- 
fused to deliver possession thereof to defend- 
ants. 

The answers conclude with a general pray- 
er for relief, and ask for a decree canceling 
the contract aforesaid, as well as the deed 
made by the defendants to plaintiffs afore- 
said, and likewise ask that plaintiffs be di- 
vested of the title to said 9.6 acres, and that 
the same be vested In defendants. The latter 
tendered with said answer a deed to plaintiffs 
for the 140 acres aforesaid, eta 

Plaintiffs' reply denies the allegations of 
new matter set up in said answers. It seta 
out the terms of said contract of date, June 
4, 1912, as claimed by plaintiffs, and alleges 
that, pursuant to said contract, defendants 
executed and delivered to plaintiffs the war- 
ranty deed for said 9.5 acres, which was duly 
recorded as aforesaid. It is further averred 
that plaintiffs, upon the request of defend- 
ants, executed and delivered to them the deed 
aforesaid for said 140 acres of land; that 
after the execution and delivery of said deed 
defendants executed a deed of trust against 
■aid land (140 acres) to the Mutual Benefit 
Life Insurance Company to secure the pay- 
ment of the notes in said deed of trust de- 
scribed ; that defendants went into possession 
of a part of said 140 acres conveyed to them 
by plaintiffs, did some plowing thereon, and 
that they went into possession of a part of 
the residence and part of the barn situated 
on said premises; that thereafter defend- 
ants abandoned such possession of said prem- 
ises and refused plaintiffs the possession of 
said 9.5 acres. It is averred that plaintiffs 
tendered to defendants, as required by the 
terms of the contract, the possession of all 
said land, and demanded of defendants the 
possession of said 9.6 acres; that defendants 
refused said demand, and have ever since re- 
fused to deliver possession of said premises 
to plaintiffs. 

Both of the above cases, by stipulation filed 
at the January term, 1913, of the Carroll 
circuit court, were, by consent, consolidated 
and tried as one case. 

It appears from the evidence that defend- 
ants, who are twins, were 21 years of age on 
September 17, 1911. Prior to the negotiations 
with plaintiffs these boys had had but little 



73 

business experience. They inherited from 
their father the 9.5 acres of land aforesaid, 
and bought the dower interest of their mother 
in same. Their father died May 4, 1912. 

On June 4, 1912, defendants' 9.5 acres were 
estimated to be of the value of $5,000, sub- 
ject to a deed of trust thereon for $2,000. 
Plaintiffs were the owners and In possession 
of the 140 acres of land in said county, sub- 
ject to a deed of trust In the sum of $3,750 
at 6 per cent Interest in favor of W. D. Pin- 
ney, and also a second deed of trust for $660 
at 7 per cent Interest In favor of B. B. and 
W. J. Wilson, sureties. The consideration of 
the deed to defendants for the 140 acres is 
placed at $9,450, although the trial court 
found the real value of said land to be $5,- 
600. Woodyard, the agent of plaintiffs, told 
defendants the 140 acres was worth $9,450. 

It appears from the evidence that Wood- 
yard and Patton were engaged In the real 
estate business in Bosworth, and that both 
plaintiffs and defendants had listed their re- 
spective tracts of land with said firm for 
sale or exchange. Woodyard was a lawyer, 
and Patton was a cousin of plaintiff R. G. 
Wilson. 

On June 4, 1912, defendants, at the in- 
stance of Woodyard and Patton, went to 
look at the 140 acres of land aforesaid. They 
found Woodyard and Patton at the farm, 
and Wilson was In the field plowing. Wood- 
yard and Patton went over the greater por- 
tion of said land with the defendants. Be- 
fore they left the place, the defendants, In 
the presence of Woodyard and Patton, had 
a conversation with Wilson in regard to the 
condition of Said land, Its northern boundary, 
etc. As there is a sharp conflict between the 
testimony of plaintiffs and defendants as to 
what occurred and what representations 
were made In respect to said 140 acres of 
land on above occasion, and as this relates 
to one of the main issues in the case, to avoid 
repetition, we will consider this subject In 
the opinion. 

The defendants returned to Bosworth on 
the evening of June 4, 1912, and on said 
date signed a written contract for the ex- 
change of said properties. The plaintiffs aft- 
erwards signed said contract, and it was 
left in the possession of Woodyard and Pat- 
ton. There is an irreconcilable conflict be- 
tween plaintiffs' evidence and that of defend- 
ants as to whether the original contract was 
materially altered after its execution, with- 
out the knowledge or consent of defendants, 
by erasing the word "June" and inserting in 
lieu of same the word "September" in that 
part of the contract relating to the time 
when possession was to be delivered to de- 
fendants. 

The original contract as offered by plain- 
tiffs, provided that they should convey to 
defendants the 140 acres supra for the con- 
sideration of $9,450, and were to take, as 
part of said consideration, the 9.5 acres of 



WITSON v. HKNDKKSON 



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74 



191 SOUTHWESTERN REPORTER 



(Mo. 



defendants for the price of $5,000, subject 
to a deed of trust for $2,000. Plaintiffs were 
also to take a note for $1,800, signed by D. 
A. Carman and Minnie Carman, if not dis- 
posed of by defendants, and If taken by 
plaintiffs. Defendants were to make said 
$1,800 draw 7 per cent interest Instead of 
6 per cent., as written in Bald note. Two 
hundred and fifty dollars was to be paid by 
defendants September IB, 1912. Both par- 
ties were to prepare and deliver on or be- 
fore September 10, 1912, abstracts showing 
good title to said 9.5 acres and said 140 
acres. Leaving out of consideration that 
part of the contract relating to possession of 
said 140 acres, it further provides for a for- 
feiture of $250 should either of said parties 
fall to comply with said contract Warranty 
deeds were executed by the parties hereto 
for said 9.5 acres and the 140 acres afore- 
said. These deeds were left with Woody a rd 
4 Patton. 

About the 16th of August 1912, defend- 
ants notified plaintiffs and said Woodyard 
ft Patton that they would not carry out said 
agreement or contract because of plaintiffs' 
alleged failure to give possession of the 140 
acres as provided for in the contract, and 
because of misrepresentations of plaintiffs 
and said agents in regard to said land. The 
defendants thereupon got from Woodyard ft 
Patton the keys to their buildings located on 
said 9.5 acres on August 16, 1912, and at 
said time notified them that they would not 
comply with said contract Thereupon the 
plaintiffs caused their agents, Woodyard ft 
Patton, to record the deed from defendants 
to them for the 9.5 acres on August 24, 1912, 
although the contract gave the respective 
parties until September 15, 1912, to comply 
with same. Woodyard ft Patton at the same 
time recorded the deed from plaintiffs to 
defendants. The latter had no knowledge of 
the recording of either of said deeds until 
some time thereafter. Thereupon Wood- 
yard & Patton, without informing defend- 
ants as to their intention, negotiated a loan 
upon said 140 acres for $4,700 under an ap- 
plication for a loan made by defendants be- 
fore the 16th of August 1912, and before 
said deal was declared rescinded. Without 
the knowledge and consent of these defend- 
ants, and without informing Bartlett Bros., 
through whom the $4,700 was borrowed, that 
the trade had been canceled, these agents 
carried through said loan, as though it had 
been acquiesced ta by defendants. These 
same agents wrote defendants a letter and in- 
closed a statement of their transactions, as 
follows: 

"Bosworth, Mo., September 2, 1912. 
"Wm. ft Wither Henderson, Bosworth, Mo.— 
Gentlemen: We beg to advise you that we have 
closed up your loan with Bartlett Bros., and 
herewith inclose to you our check for $143.00, 
the balance due you after paying off all incum- 
brance on the land, our fees, costs, charges, and 
expenses. The inclosed itemized account shows 
the settlement in detail. 

"Yours truly, Woodyard ft Patton. 



Amount of loan . ." $4,700.00 

Paid W. D. Pinney note. . .$3,750.00 

Paid Cassingham note 650.00 

Recording your deed and 

two trust deeds 4.50 

Releasing two notes .50 

Woodyard ft Patton, com- 
mission on land trade. . . . 100.00 
Woodyard ft Patton, com- 
mission securing loan . . . 47.00 

Abstract bill 5.00 

Check to you, balance 143.00 



$4,700.00*' 

Such other facts as may be necessary will 
be considered in the opinion. 

The case was tried by the court without a 
jury, and a very extended finding of. facts 
made in disposing of the case. A decree was 
entered in behalf of defendants in the trial 
court Plaintiffs filed motions for a new 
trial and in arrest of judgment which were 
overruled, and the cause duly appealed by 
them to this court 

Jones ft Conkllng, of Carrollton, for ap- 
pellants. Fred S. Hudson, of Kansas City, 
and Lozler ft Morris, of Carrollton, for re- 
spondents. 

BAILEY, C. (after stating the facts as 
above). [1] L Did the plaintiff, R. G. Wil- 
son, on June 4, 1912, while Woodyard, Patton, 
and both defendants were present in the 
field where Wilson was plowing on the 140 
acres of land in controversy, misrepresent 
and deceive defendants as to the condition, 
quality, quantity, and northern boundary of 
said 140 acres? 

After having read and re-read the abstract 
of record and briefs of counsel, we find from 
the evidence that respondents were young 
men of but little experience, knew nothing 
about the boundaries of plaintiffs' farm, and 
were likewise ignorant of its condition, qual- 
ity, etc.; that on said 4th day of June, 1912, 
the above-named plaintiff was asked by one 
of the defendants where the north line of his 
farm was located, and as to who was the 
owner of the swamp land on the north side 
of the fence pointed out as part of the in- 
closure where they then stood; that said 
plaintiff represented to defendants that the 
fence on the south side of said swamp land 
was his north boundary, and that said swamp 
land north of said fence belonged to Gross- 
man; that the above representation was un- 
true; that the swamp land above mentioned 
was a part of said 140 acres ; that the north- 
ern boundary of said land was on the north 
side of said swamp land ; that said strip of 
swamp land extended from 160 to 200 yards 
north and south and about one-quarter of 
a mile east and west; that defendants were 
ignorant of said boundary, believed said rep- 
resentations to be true, and relied thereon. 

We further find from the evidence that 
said Wilson, in answering an inquiry of de- 
fendants as to the number of acres of said 
farm in cultivation, stated that there were 
120 acres of the land In cultivation; that there 



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Ma) 

were Only 20 acres tit timber on the place; 
that one-half, or 10 acres, of the timber land 
overflowed, and that none of the other land 
was subject to overflow; that said plaintiff 
farther stated the Irregular shaped tract of 
land lying west of a branch mentioned by 
him contained 00 acres; that all of It was 
under cultivation; and that no part of same 
overflowed. 

We find that this tract contains about 23 
or 24 acres of cultivating land, a part of 
which was subject to overflow, and that part 
of the land west of the branch not examin- 
ed by defendants was not In cultivation. We 
further find said plaintiff stated that none of 
the land on the east side of the branch or the 
land lying north of the farm house overflow- 
ed, while the evidence shows that practical- 
ly all of It overflowed. We further find 
said plaintiff represented that the land north 
of a branch in the northeast part of the 
farm contained about 20 acres, none of which 
overflowed, when, as a matter of fact, there 
were only 8 acres of said land, and all of It 
was subject to overflow. 

We find from the evidence that the above 
representations were untrue and known to 
be so when made, and were so made for the 
purpose of deceiving defendants and Induc- 
ing them to part with their land in exchange 
for plaintiffs'. We further And from the evi- 
dence that there are not more than 80 acres 
of said 140-acre tract in cultivation, dependa- 
ble farming land, and not subject to annual 
or periodical overflows. We further find that 
Woodyard represented to defendants that 
said 140 acres was reasonably worth $9,460, 
and he placed that as the purchase price in 
plaintiffs' deed to defendants for said farm ; 
that, as a matter of fact, said land was not, 
in our opinion, worth more than $40 pier acre, 
or $5,600. 

Without going more Into details, we are 
satisfied with the finding of facts made by 
the trial court In respect to above matters, 
and hereby adopt the same. We therefore 
hold that plaintiffs and their agents made 
material and untrue representations in re- 
gard to foregoing matters, with full Knowl- 
edge of their falsity at the time; that said 
false and fraudulent representations were 
made with the intent to deceive defendants 
and to Induce them to rely thereon and ex- 
change their property for said land. We 
further rule that defendants were not deal- 
ing upon equal terms with plaintiffs and 
their agents; that they believed said repre- 
sentations to be true and acted thereon ; that 
they were Ignorant of the real conditions 
aforesaid, and were Induced to sign' said con- 
tract by reason of the fraud perpetrated up- 
on them by plaintiffs and their agents. 

[2] II. In view of the conclusions hereto- 
fore reached, did the defendants move 
promptly in undertaking to rescind the con- 
tract entered into with plaintiffs? Accord- 
ing to the terms of the contract, read 1b evi- 



TB 

dence by plaintiffs, the deal between the par- 
ties was not to be consummated until Sep- 
tember 16, 1812. It was simply an agree- 
ment to exchange lands, after the respective 
abstracts were furnished, showing good title 
as to said lands. No abstract was ever de- 
livered to defendants as to plaintiffs' land, 
nor was any abstract of defendants' land de- 
livered to plaintiffs. The latter did not take 
possession of the 9.5 acres, and have contin- 
ued in possession of their own farm. We find 
from the evidence that defendants, who had 
Just learned about August 12, 1012, as to the 
real condition, quality, quantity, and bound- 
ary of said 140 acres, gave notice to R G. 
Wilson on August 16, 1912, that they would 
not carry out the contract to exchange their 
land for plaintiffs' because the latter refused 
to give them possession of the house and 
barn and because of the misrepresentations 
in respect to plaintiffs' lands. We further 
find that on August 15, 1912, Wilbur Hender- 
son obtained from Woodyard ft Patton, plain- 
tiffs' agents, the keys belonging to defend- 
ants' premises, and that they then and there 
notified said agents that the trade was off. 
It thus appears that on August 15 and 16, 
1912, both plaintiffs and their agents were 
notified that the deal would not be carried 
out Defendants having obtained their house 
keys and plaintiffs being In possession of the 
140 acres, there was no necessity .for defend- 
ants to take any further action at that time, 
as their deed to the 9.5 acres was not deliv- 
ered, but left in the hands of their trusted 
agents, Woodyard & Patton. 

While matters stood In this condition, the 
plaintiff, E. G. Wilson, had Woodyard ft 
Patton, without the knowledge or consent of 
defendants, record the deed from defendants 
to plaintiffs for the 9.5 acres ; and the deed 
from the plaintiffs to defendants for said 140 
acres was likewise recorded at the same time 
by said agents. Here, then, was a prompt 
act upon the part of defendants, on August 
15 and 16, 1912, to repudiate the contract 
of exchange, and an equally prompt act upon 
the part of plaintiffs and their willing agents 
on August 24, 1912, to thwart the effort of 
defendants in rescinding said agreement 
This is not all, for these disloyal but trust- 
ed agents of defendants, In utter violation of 
their duty, took up the application which de- 
fendants had made in June or July, 1912, for 
a loan on said 140 acres, in anticipation of 
their acquiring title thereto, and without the 
knowledge and consent of defendants, well 
knowing that the deal had been repudiated 
by defendants, perfected said loan by borrow- 
ing on said 140 acres $4,700 through Bart- 
lett Bros., of St Joseph, Mo., without Inform- 
ing the latter that defendants had rescinded 
said contract and were not the owners of 
said 140 acres of land. By reason of the il- 
legal' and unwarranted acts of plaintiffs and 
their agents, the 140 acres was incumbered as 
aforesaid, without the fault of defendants. 



WILSON HENDERSON 



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TO 

in order to compel the latter to make said 
exchange and comply with said contract 

We accordingly rule that within a few days 
after defendants were Informed as to the 
true condition of said 140 acres of land, 
and learned of the falsity of the representa- 
tions aforesaid, they acted promptly, and 
within a reasonable time, in rescinding said 
contract, and that plaintiffs at the time they 
were Informed of such rescission on August 
16, 1912, had suffered no Injury and were 
still in possession of their own farm. 

We are thoroughly familiar with the au- 
thorities cited by appellants In regard to the 
law relating to rescission of contracts, but 
find that they do not have any application to 
the facts of this case, as defendants, accord- 
ing to our conception of the law, acted 
promptly in rescinding the contract afore- 
said. 

[3] III. It Is claimed by counsel for appel- 
lants In their brief that: 

"Defendants, having gone to the farm before 
entering into the contract and examining it for 
themselves, cannot complain of fraudulent rep- 
resentations respecting it on the part of plain- 
tiffs." 

One of the principal grievances relied upon 
by respondents relates to the periodical over- 
flow of nearly half of plaintiffs' farm, and In 
respect to its being independable for agri- 
cultural purposes. Defendants had no in- 
formation in respect to such matters, and 
were compelled to rely upon the truth of 
plaintiffs' representations; as there was noth- 
ing patent upon the face of the land at that 
time to Indicate the falsity, of said represen- 
tations. The same Is true with reference to 
the northern boundary of said land, and In 
respect to the other fraudulent representa- 
tions made by plaintiffs and their agents, 
which were relied upon by defendants, and 
believed by them to be true, when said con- 
tract was executed. 

The above contention, in view of the facts 
heretofore found by as, is not sustained by 
the laws of this state. Judd v. Walker, 215 
Mo. 312, 114 8. W. 979; Davis v. Forman, 
229 Mo. loc ctt 48, 49, 129 S. W. 213; 
Stonemets v. Head, 248 Mo. loc. clt 262, 154 
S. W. 108, and cases cited; Morbrose Inv. 
Oo. v. Flick, 187 Mo. App. 528, 174 S. W. 189; 
Devero v. Sparks et al., 189 Mo. App. 500, 
176 S. W. 1056; Kelley v. Peeples, 192 Mo. 
App. 485, 182 S. W. loc. dt 811. 

[4] IV. It is asserted by appellants In their 
brief that: 

. "To entitle a party to, rescind a contract on 
the ground of fraud, misrepresentation, or de- 
ceit, he must tender back that which he has re- 
ceived, that is, must restore the statu quo. This 
the defendants did not da" 

We have no fault to find with the above 
abstract statement of the law, nor with the 
authorities cited In support of same. But 
we are decidedly of the opinion that the 
above contention, on the facts before ns, 
does not fit this case. 

Reverting to the testimony, we find that 



(Mo. 

defendants on August 15 and 16, 1912, nod- 
fled plaintiffs and their agents, that they 
would proceed no further with the land deal. 
Now, If the parties had stopped there, plain- 
tiffs could have recalled their deed for the 
140 acres, and, being In possession of their 
own land, with the original deeds of trust 
thereon as they stood when said contract 
was signed, they would have sustained no 
injury. Instead of pursuing the above course, 
plaintiffs moved promptly and on August 24, 
1912, had their agents, Woodyard & Patton, 
record the deed which defendants had left 
with their trusted agents, from defendants 
to plaintiffs for the 9.5 acres, without the 
knowledge or consent of defendants. We 
find that, through the connivance of plain- 
tiffs with their said agents, they caused the 
latter to record at the same time the deed 
from plaintiffs to defendants for the 140 
acres of land, without the knowledge or con- 
sent of defendants. 

As heretofore stated the defendants ex- 
pected to make a new loan on the 140 acres 
of land If the deal went through, and to 
take up the original deeds of trust thereon. 
The Bartlett Bros, deed of trust for $4,700 
was dated July 25, 1912, and acknowledged 
the following day. This deed of trust was 
filed for record In the recorder's office of said 
county on August 24, 1912, the same day 
both the deeds In controversy were filed by 
said agents. 

Woodyard testified on this subject as fol- 
lows: 

"Q. On August 16th, when the boys declared 
the trade off, that you notified Bartlett Bros., 
that the Hendersons claimed that trade off? A. 
No, no. Q. Ton let them go ahead and consum- 
mate that deal? A. Tea, sir. Q. And you were 
a party to the consummation of that deal? A. 
Tea, air. Q. And you received from them the 
proceeds of the surplus portion of that loan, 
didn't you? A. Yes, sir." 

He further testified: 

"Q. Whether they wanted to consummate this 
trade or not, you were insisting on them doing 
it? A. Tea, sir." 

This trusted agent of defendants BtQl far- 
ther testified as follows: 

"Q. And yet after they told you the trade was 
off, and after they had called for the keys of the 

house on their property, you came down here to 
Carrollton, filed these deeds, filed the deed of 
trust that they gave to Bartlett Bros., filed a 
second deed of trust for Bartlett Bros., for com- 
mission, released the old loans on that 140 acres, 
had the abstracts brought down to date by the 
Carroll County Abstract Company, and forward- 
ed those abstracts to Bartlett Bros., for trans- 
mission to the Mutual Benefit Life Insurance 
Company at Newark, N. J. You did all of that 
after they told you this trade was off? A. I did 
all of that and never did a thing more than if 
they hadn't declared the trade off." 

This witness and his partner received from 
the Bartlett Bros, loan, as heretofore shown 
In the statement, for alleged commission and 
other services, $147. This same witness also 
testified: 

"Q. Well, then, all this recording deeds and 
closing loans and rendering statements and is- 



191 SOUTHWESTERN REPORTER 



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Mo.) 



WILSON T. HENDERSON 



77 



raiag statements and certifying abstracts, that 
was all after that? A. Yes." 

The defendants bad no knowledge as to 
what plaintiffs and their agents had done in 
re&pect to these matters until they received 
the letter aforesaid from Woody ard & Pat- 
ton, with the check for $143, in September, 
1912. Defendants never cashed the above 
check. 

We are satisfied from the record before us 
that all of the proceedings aforesaid by said 
agents were taken with the knowledge and 
acquiescence of plaintiffs, In order to pre- 
vent defendants from rescinding said con- 
tract, and for the purpose of compelling 
them, if possible, to carry oat said exchange 
of properties. We hold that plaintiffs and 
their agents are responsible for the present 
condition of the title to said 140 acres, and 
that defendants are not in any manner re- 
sponsible therefor; that by reason of the 
foregoing defendants are entitled to rescind 
the contract In support of this conclusion 
we call attention to the following authorities: 
Green v. Life Insurance Co., 159 Mo. App. loc 
cit. 298, 140 a W. 325; Haydon v. Railroad, 
222 Mo. loc. cit 135, 121 S. W. 15; Paquln 
v. Milliken, 163 Mo. loc. cit 108-108, 63 S. 
W. 417, 1092 ; Newman v. Newman, 152 Mo. 
loc. dt 414, 54 S. W. 19; Hammond v. Pen- 
nock, 61 N. Y. 145; Butler v. Prentiss, 158 
N. Y. loc dt «3, 64, 62 N. B. 652 ; Heckscher 
t. Bdenborn, 203 N. Y. loc. dt 227, 228, 96 
N. B. 441; Downer v. Smith, 32 Vt. 1, 76 
Am. Dec. 148; Conlan v. Roemer, 52 N. J. 
Law, 53, 18 AtL 858; 24 Am. & Eng. Bncy. 
of Law (2d Ed.) p. 623; 9 Cyc. 439. 

We do not deem it necessary to discuss any 
of the minor questions raised In the case. 
We roily concur In the finding of facts made 



by the trial court and likewise concur as to 
the judgment rendered thereon. 

The judgment of the court below Is accord- 
ingly affirmed. 

BBOWN, O., concurs. 

PER CURIAM. The foregoing opinion of 
RAILEY, C, is hereby adopted as the opin- 
ion of the court All concur; BLAIR, X, In 
result 



WILSON et aL v. HENDERSON et al 
(No. 17619.) 
(Supreme Court of Missouri, Division No. 1. 
Dec. 20, 1916.) 

Appeal from Circuit Court, Carroll County; 
Frank P. Divelbias, Judge. 

Action by R. O. Wilson and another against 
William Henderson and another. From judg- 
ment for defendants, plaintiffs appeal. Affirmed. 

Jones & Conkling, of Carrollton, for appel- 
lants. Fred S. Hudson, of Kansas City, and 
Locier & Morris, of Carrollton, for respondents. 

RAILEY, C. This case, and that of R. G. 
Wilson et aL v. William Henderson et al., 191 
S. W. 72, numbered 17517 in this court, were 
consolidated in the court below, and tried aa one 
case, although separate appeals were taken by 
plaintiffs to this court The issues raised and 
submitted in defendants' equitable answers were 
the same in each case. We affirmed the judg- 
ment of the trial court in behalf of defendants 
in above case numbered 17517 at this term of 
court 

The judgment below in the present case is ac- 
cordingly affirmed. 

BROWN, O., concurs. 

PER CURIAM. The foregoing opinion of 
RAILEY, CL, is hereby adopted as the opinion 
of the court All concur; BLAIR, J., in result 



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191 SOUTHWESTERN REPORTER 



(Kir. 



NEW HUGHES JEIXICO COAL CO. 
v. GRAY. 

(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. Master and Servant «3=»107(5)— Injuries 
to Servant— Safe Place to work. 

The safe-place doctrine has no application 
to a danger created by the servant in the prog- 
ress of his work, as by a miner in removing 
coal from under slate which fell and injured him. 

[Ed. Note. — For other cases, see Master and 
Servant, Cent Dig. § 209; Dec. Dig. <8=»107 

2. Master and Servant <g=>221(4) — Injuries 
to Servant— Assumption of Risk. 

The rule that where a miner complained of 
danger that slate would fall, and the foreman 
promised to timber the passage, the miner could 
remain for a reasonable time without assuming 
the risk, does not apply where the risk is so 
great and imminent that a reasonably prudent 
man would not incur it ; the promise not mak- 
ing the master an insurer. 

[Ed. Note. — For other cases, see Master and 
Servant, Cent Dig. | 642 ; Dec. Dig. <8=>221(4).] 

3. Master and Servant «=»281(3) — Injuries 
to Servant — Assumption or Risk— Ques- 
tion FOB JURT. 

Where a miner in mining a passage loosened 
slate overhead, and knew that the roof was 
cracked, and told the foreman that it was dan- 
gerous, but nevertheless went on and mined out 
coal from under the slate and remained in such 
dangerous position, he was, as a matter of law, 
guilty of contributory negligence. 

[Ed. Note.— For other cases; see Master and 
Servant Cent Dig. J 989; Dec. Dig. «=>281(3).J 

Appeal from Circuit Court Knox County. 

Action by Mat Gray against the New 
Hughes Jellico Coal Company. Judgment for 
plaintiff, and defendant appeals. Reversed 
and remanded. 

Black, Black & Owens, of Barbourvllle, 
for appellant J. D. Tuggle, of Barbourvllle, 
for appellee. 

CLAY, C. Mat Gray, a miner in the em- 
ploy of the New Hughes Jellico Coal Com- 
pany, was Injured by falling slate and 
brought this suit to recover damages. From 
a verdict and judgment In his favor for $1,000 
the company appeals. * 

Plaintiff predicates his right of recovery 
on two grounds : (1) The failure of the com- 
pany to furnish him a reasonably safe place 
to work by propping and timbering the roof 
of his working place; (2) the promise of 
the company to timber the roof, accompanied 
by an assurance of safety and a direction to 
plaintiff to continue his work. 

According to plaintiff's evidence, he and 
his "buddie" were engaged in "driving an 
air course" In the mine. The vein of coal was 
about five feet thick. A parting of slate 
from two to four inches thick ran horizontal- 
ly through the middle of the vein, thus leav- 
ing a little over two feet of coal above 
the parting and about the same amount be- 
low. The coal above the parting is known 
as the "top bench"; that below as the "bot- 
tom bench." The method of digging and 



loading the coal, was first to take the coal 
from the top bench. After doing that the 
bottom bench was mined. Both benches were 
not excavated at the same time. Plaintiff 
had not been at work for a day or two prior 
to August 26, 1014. In the meantime, bis 
"buddie," Alex Jones, bad been at work. On 
that morning both plaintiff and Jones came 
into their working place. Plaintiff noticed 
some loose slate overhead, and called the at- 
tention of his buddie to it He and his bud- 
die sounded the slate, found it loose and 
pulled a portion of it down. While attempt- 
ing to pull another piece of slate, the fore- 
man, Stanley Cole, appeared and told them 
they ought to pull the slate. Plaintiff told 
Cole that he and his buddie had been unable 
to pull the slate, and asked Cole to pull it 
down. Cole picked up a bar and polled at the 
slate, but could not get It down. Plaintiff 
says that he then told Cole that he would 
have to timber the slate or do something 
with it. Cole said, "All righf and told 
plaintiff to watch It Plaintiff said, "I will." 
The slate referred to was right at a "break- 
through." The air course had been carried 
five or six feet beyond the breakthrough. 
After the foreman left, plaintiff and his bud- 
die proceeded to dig and load out the coal 
from the top bench In the air course and ex- 
tended the excavation about three feet be- 
yond the bottom bench. At the time of his 
injury, which occurred between 9 and 10 
o'clock on the morning of August 27th, plain- 
tiff was lying down on the top of the parting, 
picking coal from the side of the rib ; that is, 
"shearing the rib." While In this position 
a piece of slate fell from the roof and in- 
jured plaintiff about the upper part of his 
body. The piece of slate that fell on plaintiff 
was seven or eight feet long, and ran with 
the air course. Plaintiff further says that it 
was no part of his duty to prop or timber 
his working place. This duty devolved upon 
the company. He would notify the company 
and they would then do the timbering. He 
admits, however, that the company never set 
cross-collars, or upright posts, on the top of 
the bottom bench. The company did timber, 
however, In the air course up to Where the 
men were at work, if it was necessary. The 
piece of slate which fell resembled a "horse- 
back," and It slipped loose from the roof. 
Plaintiff knew that when the coal was taken 
out from under the slate It would fall. The 
horseback was held at one end by the coal 
which plaintiff and bis buddie were digging 
out 

According to the evidence for the com- 
pany, it was the duty of the company to prop 
and timber in the air course behind the min- 
ers. It was no part of their duty to prop 
or timber between the lower bench and the 
roof. It was the duty of the men to remove 
the slate and look after the roof above the 
"bottom bench." Alex Jones, plaintiff's bud- 



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die* says that at the time of plaintiff's In- 
jury the top bench had been removed for a 
distance of six or seven feet, and plaintiff 
was on the top bench, digging out the coal. 
This coal was removed the day before. 
Jones and the foreman further say that the 
piece of slate that fell on plaintiff was not 
the piece of slate that plaintiff and the fore- 
man were talking about the day before. They 
and their witnesses say that the piece of 
slate near the breakthrough was still there, 
and had never fallen. The slate that fell 
and struck plaintiff was lying right on top 
of the bench along the rib. The foreman 
says that plaintiff admitted to him on the 
day of the accident that the slate that they 
had talked about the day before was not the 
date that fell on him. In rebuttal, plaintiff 
denied making this statement, but did not 
deny the fact 

[1] On these facts the company contends 
that it was entitled to a peremptory instruc- 
tion. One of two propositions is necessarily 
true. Either the slate which fell on plaintiff 
was or was not the slate which he and the 
foreman had discussed the day before. The 
decided weight of the evidence Is to the ef- 
fect that it was not. Indeed, nearly all of 
the witnesses say that the slate which plain- 
tiff and the foreman discussed bad never 
fallen. The slate which fell on plaintiff 
struck him while he was lying on the bottom 
bench and "about balanced on his body." 
Indeed, plaintiff's injuries were received on 
the upper part and not on the lower part of 
his body. If it be true, then, that the slate 
which injured plaintiff was a different piece 
from that discussed by him and the fore- 
man, it necessarily follows that the slate fell 
from the roof above the bottom, bench and 
at a place where the company was under no 
duty to prop or timber. In other words, the 
danger was such as was created by plaintiff 
in the progress of his work, and the safe- 
place doctrine has no application. Music's 
Adm'r v. Northeast Coal Company, 161 Ky. 
395, 170 S. W. 971; Eagle Coal Company v. 
Patrick's Adm'r, 161 Ky. 833, 170 S. W. 960; 
Old Diamond Coal Company v. Denney, 160 
Ky. 554, 169 S. W. 1016. 

[2] On the other hand, if the slate which 
fell on plaintiff was the slate discussed by 
him and the foreman, the question is, Was 
plaintiff guilty of contributory negligence as 
a matter of law? Plaintiff's evidence does 
not show any assurance of safety. It mere- 
ly shows a promise to timber, accompanied 
by a caution to watch the slate. The rule 
is well established that where the servant 
complains of dangerous conditions under 
which he has to work, which are due to the 
master's negligence, and the master has 
promised to remedy the same, the servant 
may, in reliance upon the promise, remain 
for a reasonable time In the employment 



without assuming the risk of, or depriving 
himself of the right. to recover for, injuries 
received because of those conditions. This 
rule, however, Is subject to the qualification 
that It does not apply where the risk in- 
curred In remaining in the employment is so 
great and imminent that a reasonably pru- 
dent man would not Incur it In other 
words, the promise to remedy the conditions 
does not make the master an insurer of the 
safety of the premises for a reasonable 
length of time thereafter. The servant must 
still exercise ordinary care for his own safe- 
ty. Hence, if the servant exposes himself to 
dangers that are so threatening or obvious as 
likely to cause Injury at any moment he Is, 
notwithstanding any promise of his employ- 
er, guilty of contributory negligence if he re- 
main at the work. Rocda v. Black Dia- 
mond Coal'Mln. Co., 57 C. C. A 567, 121 Fed. 
451; Shemwell v. Owensboro & N. B. Co., 
117 Ky. 556, 78 S. W. 448. 

[3] Ordinarily, of course, this question is 
for the jury, but cases may and do arise 
where ordinarily prudent men may deduce 
but one reasonable conclusion from the ad- 
mitted facts, and In that event the question 
Is one of law. Here the plaintiff admits that 
the roof was cracked and the piece of slate 
resembled a horseback. This piece of slate 
extended beyond and above the face of the 
coal. Before he and his b addle attempted 
to remove the coal beneath it plaintiff re- 
garded the condition as sufficiently danger- 
ous to request the foreman to timber. If he 
had been Injured without any subsequent 
change in the conditions, the question of his 
contributory negligence would have been for 
the jury. However, he and his buddie went 
to work and removed the coal from beneath 
that portion of the slate which extended be- 
yond the face of the coal. He was an ex- 
perienced miner, and admits that he knew 
that If the coal was removed from beneath 
the horseback, the horseback would fall, If 
not timbered. He also knew that it was not 
timbered. After removing the coal beneath 
the horseback he got upon the bottom bench 
and began shearing the. rib, with knowledge 
of the fact that the slate was likely to fall 
at any time and Injure him. Under these 
circumstances, it seems to us that there is 
no room for honest difference of opinion 
among reasonable men as to the quality of 
his act Notwithstanding the foreman's 
promise to timber, he voluntarily exposed 
himself to an obvious, known, and Imminent 
danger, which he knew was likely to cause 
Injury at any moment and was therefore 
guilty of contributory negligence as a mat- 
ter of law. 

The trial court should have directed a ver- 
dict In favor of the defendant 

Judgment reversed, and cause remanded 
for a new trial consistent with this opinion. 



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191- SOUTHWESTERN REPORTER 



MOBILB ft O. B, 00. v. DILL. 
(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. Cabbiebs ©=>856(6)— Passengers— Ejec- 
tion. 

Where two roads run trains into and out of 
union station, a party holding a ticket over one 
road, who by misdirection of their joint employes 
or of the employes of the wrong train takes pas- 
sage on the wrong train, is not a trespasser in 
the sense that he may be ejected at any time or 
place, but is entitled to ride thereon to a rea- 
sonably safe and convenient point from which 
he can reach a train on the proper road, so that 
if the wrong train stopped within a short dis- 
tance of a place where ample accommodation 
for his comfort was provided, his ejection at 
that point was proper. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. §§ 1429-1431; Dec. Dig. «=»356(6).] 

2. Cabbiebs <3==382(4)— Ejection or Passer - 
oeb— Damages— Fbioht. 

Where a woman passenger who had taken 
the wrong train was compelled to leave at a 
point from which she could reach a proper train, 
and did not suffer any personal injury or ill- 
ness, she was not entitled to damages tor mere 
fright or mental suffering, 

[Ed. Note.— For other cases, see Carriers, 
Cent. Dig. 8 1487 ; Dec Dig. «=»882(4).] 

3. Cabbiebs <e=>382(l)— Ejection of Passen- 
ger—Damages. 

Where a passenger ejected from the wrong 
train incurred no additional expense and suffered 
no illness or personal injury, damages were limit- 
ed to such a sum as would fairly compensate her 
for the inconvenience and discomfort proximately 
resulting from an ejection at an unsuitable place. 

[Ed. Note.— For other cases, see Carriers, 
Cent. Dig. §8 1483, 1485; DecTDig. e=382(l)T] 

4. Cabbiebs «=»384(2)— Ejection— Instbuc- 
tion— Issues. 

In an action for passenger's ejection from 
wrong train, an instruction authorizing recovery, 
if on being; told to leave the train she offered 
to pay her fare to the next station, was erro- 
neous, where no such ground of recovery was 
relied on in the petition. 

[Ed. Note. — For other cases, see Carriers, 
Cent Dig. § 1498; Dec. Dig. <S=»384(2).] 

Appeal from Circuit Court, Hickman 
County. 

Action by Libbie Dill against the Mobile A 
Ohio Railroad Company and Illinois Central 
Railroad Company. Judgment for Illinois 
Central Railroad Company by direction, and 
judgment against the Mobile & Ohio Railroad 
Company, and it appeals. Reversed, and 
cause remanded for new trial. 

Jno. E. Kane, of Bardwell, and E. T. Bul- 
lock, of Clinton, for appellant. B. C. Seay, 
of Mayfield, and J. D. Via, of Clinton, for ap- 
pellee. 

CLAY, C. Plaintiff, Libbie Dill, brought 
this action against the Illinois Central Bail- 
road Company and Mobile & Ohio Railroad 
Company to recover damages for wrongful 
ejection as a passenger. The trial before a 
jury resulted In a directed verdict for the 
Illinois Central Railroad Company and a 
judgment against the Mobile & Ohio Railroad 
Company for $750. The Mobile & Ohio Rail- 
road Company appeals. 



The facts are as follows: On August 8, 
1914, plaintiff, Libbie Dill, and her mother- 
in-law, Maggie Dill, purchased from the Illi- 
nois Central Railroad Company at Paducah 
two tickets, entitling them to transportation 
over its line from Paducah to St Louis, Mo. 
Late in the evening they boarded an Illinois 
Central train, which carried them to Cairo, 
111., where, in order for them to reach their 
destination, it was necessary to leave the 
train on which they were passengers and 
take another Illinois Central train, leaving 
there at about 2:30 a. m. on the morning of 
August 7th. At Cairo the passenger station 
is called the "Union Station," and is main- 
tained and used by the Illinois Central Rail- 
road Company, Mobile ft Ohio Railroad Com- 
pany, and other roads. Both the Illinois Cen- 
tral and Mobile ft Ohio had early morning 
trains passing through Cairo and leaving 
from the Union Station for St Louis. When 
on time, the Illinois Central train arrived 
and departed before the Mobile ft Ohio train. 
On the morning of August 7th, however, the 
Illinois Central train was late, and the Mo- 
bile ft Ohio train arrived and departed from 
the Union Station before the arrival of the 
Illinois Central train. After waiting in the 
Union Station for some time, Libbie Dill and 
her mother-in-law saw a train arrive. They 
claim that they then presented their tickets 
to the ticket agent, who assured them that 
It was their train. They further claim that 
they exhibited their tickets to a colored por- 
ter and to the conductor of the Mobile ft 
Ohio train, who directed them to take pas- 
sage on that train. After the train started 
from the Union Station the conductor exam- 
ined plaintiff's ticket and Informed her that 
she was on the wrong train and would have 
to get off. The train was stopped at a point 
beyond Cairo Junction. The conductor took 
hold of plaintiff's arm and assisted her down 
the car steps without putting a step on the 
ground for her to place her foot on. Plaintiff 
and her mother-in-law say that the place 
where they were put off was eight or ten 
city blocks from the "tower" and was at a 
dark and unfrequented spot After being 
put off, they walked up to the "tower" and 
remained there for perhaps a half hour, 
when they were put on the Illinois Central 
train for St. Louis by the person In charge of 
the "tower." They reached St Louis about 
6 o'clock the next morning. They further say 
that they objected very strenuously to being 
put off, and pleaded with the conductor not 
to put them off. They also claim that they 
offered to pay the conductor their fare to 
take them to another station. 

For the Mobile ft Ohio Railroad Company, 
the ticket agents at Cairo say that plaintiff 
and her mother-in-law did not exhibit to 
them their tickets, and were not told by them 
to get on the Mobile & Ohio train. The con- 
ductor and flagman and also several station 



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porters were Introduced, and they say that 
they did not examine and Inspect the tickets, 
or direct plaintiff and her mother-in-law to 
get on the train. It Is farther shown by the 
conductor and flagman of the Mobile & Ohio 
train, by one of the road's local attorneys 
who happened to be on the train, and by the 
yard clerk, train dispatcher, and signal man 
at Cairo Junction, that the train In question 
stopped right opposite the "tower," and plain- 
tiff and her mother-in-law got off the train 
80 or 60 feet south of the board walk leading 
from the railroad into the "tower." It was 
further shown that the conductor saw the 
yard clerk and Informed him of the fact that 
he had two ladles who had gotten on his 
train by mistake, and asked him to flag the 
Illinois Central train and to put them on that 
train. The yard clerk was at the end of the 
board walk nearest the railroad track with 
a light, and he says that after the train 
left plaintiff and her mother-in-law came to 
him and went Into the "tower," where they 
occupied two chairs until the arrival, about 
36 minutes later, of the Illinois Central 
train, which they boarded. There was also 
evidence to the effect that the Mobile & Ohio 
train stopped at the place where it is usual 
for that road to discbarge and take on pas- 
sengers, and that this place was well lighted 
by lights from the "tower" and from the rail- 
road, and that the walkways were in good 
condition. 

Plaintiff predicates her right to recover on 
the claim that the agents and servants of 
the Mobile & Ohio Railroad Company in- 
spected her ticket and directed her to board 
the train on which she took passage; that 
thereafter that company, with gross negli- 
gence, carried her to an uninhabited, dan- 
gerous, and desolate place, where there was 
no shelter, and there ejected her and com- 
pelled her to walk and carry her baggage 
over a rough, dangerous, and uninhabited 
way to a place where she could secure shel- 
ter. This Question was submitted to the Jury 
with directions to find for plaintiff, If they 
so believed, such an amount in damages as 
would fairly compensate her for any mental 
pain and anguish which they might believe 
from the evidence that she suffered as the 
direct and proximate cause of her ejection. 
On the other hand, the Jury were told that 
if they believed from the evidence that the 
defendant ejected plaintiff from the train at 
a suitable place for passengers to alight, 
they should find for the defendant. By an- 
other Instruction, the Jury were told that 
if they believed from the evidence that when 
the employes of the defendant stopped the 
train and informed plaintiff that she would 
be required to get off, plaintiff offered to pay 
said employee to transport her to a passen- 
ger station on defendant's road before requir- 
ing ber to leave said train, and said em- 
ployes refused to accept said transportation 
charges, and required her to leave the train 
101 S.W.-6 



at a place on its line remote from a passen- 
ger station, then the law was for the plain- 
tiff and the jury should so find. 

[1] It seems to us that in a case like this, 
where two roads Jointly maintain a Union 
Station and run into and out of that station, 
and a party holding a ticket over one of the 
roads, by misdirection of their Joint em- 
ployes or the employes of the wrong train, 
takes passage on the wrong train, the true 
rule Is that she Is not a trespasser in the 
sense that she may be Joined at any time 
or place, but Is entitled to ride on the wrong 
train to the reasonably safe and convenient 
point from which she can reach a train on 
the proper road. Here both roads ran to 
Cairo Junction, and that was the proper 
place for plaintiff to be put off in order that 
she might continue her passage on the Illi- 
nois Central road over which she had a tick- 
et If, therefore, the Mobile & Ohio train 
stopped opposite the "tower," plaintiff and 
her mother-in-law had but a short distance 
to walk- in order to reach the "tower," where 
ample accommodation, for her comfort was 
provided, and her ejection at that point was 
proper. 

[2] Plaintiff's whole case, therefore, rests 
on the proposition that she was carried eight 
or ten squares past the "tower" to a place 
that was not reasonably safe and conven- 
ient of access to the tower. If that be true, 
the question is, What is the proper measure 
of damages? The evidence clearly shows 
that she was not subject to any additional 
expense or delay, but rode on the ticket 
which she had purchased and took the same 
train over the Illinois Central road that she 
would have taken had It not been for the al- 
leged misdirection. While the place where, 
according to her evidence, she was compel- 
led to alight was some distance from the 
"tower" and at an unfrequented spot, the evi- 
dence fails to show that this place was dan- 
gerous In the sense that she suffered any 
personal injury or illness as the result of her 
ejection at that place. She complains in her 
evidence of the Inconvenience and discom- 
fort attending her return to the "tower" and 
of the fact that she was frightened. Not 
having received any personal injury or suf- 
fered any illness of any kind as the result 
of her ejection, we conclude that she was 
not entitled to recover for mere fright, ana 
that the trial court erroneously authorized a 
finding for mental suffering. 

[3] In a case like this, where no time was 
lost and no additional expense was incurred, 
and no personal Injury or illness is shown, 
the damages should be confined to such a 
sum as will fairly compensate plaintiff for 
the inconvenience and discomfort which she 
suffered as the direct and proximate result 
of her ejection at an unsuitable place. 
Louisville & Northern Railway & Lighting 
Company v. Comley, 160 Ky. 11, 183 S. W. 
207. 

[4] With respect to the instruction author- 



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191 SOUTHWESTERN REPORTER 



(Ky. 



feslng a recovery if plaintiff, on being told to 
leave the train, offered to pay her fare to 
the next passenger station, it is sufficient to 
say that no such ground of recovery was re- 
lied on in the petition, and it was therefore 
error to submit this phase of the case to the 
Jury. 

Judgment reversed, and cause remanded 
for a new trial consistent with this opinion. 



BERLIN MAOH. WORKS v. JEFFERSON 
WOODWORKING CO. 

(Court of Appeals of Kentucky. Jan. 28, 1917.) 

1. Sales <S=»418(17) — Delay in Delivery — 
Right to Recover. 

Where a woodworking company's contract 
to purchase a machine to be made for it gave 
it the arbitrary right to reject the machine aft- 
er it was made, and expressly stipulated that 
delivery of the machine at any specific time 
was waived, the company could not recover dam- 
ages resulting from loss of profits by reason cf 
delay in delivery at a certain time; ns such 
damages could not be said to have been in con- 
templation of the parties. 

[Ed. Note.— For other cases, see Sales, Cent. 
Dig. § 1198; Dec Dig. «=>418(17).] 

2. Sales <&=>81(1)— Binding Foboe of Con- 
tract— Fbatjd ob Mistake. 

In the absence of fraud or mistake in a 
contract of sale, or in reducing it to writing, 
the buyer is bound by its terms, including a 
waiver as to the time of delivery. 

[Ed. Note.— For other cases, see Sales, Cent. 
Dig. § 217; Dec. Dig. «=»81(1).] 

3. Evidence «=»441(9)— Evidence Affecting 
Whiting— Fraud or Mistake. 

In the absence of allegation charging fraud 
or mistake in the execution of a contract of 
sale, its terms or meaning cannot be varied 
by proof introduced by defendant buyer, wheth- 
er contained in the testimony of its witnesses 
or in letters. 

[Ed. Note.— For other cases, see Evidence, 
Cent. Dig. §g 1729-1732, 1787-1793; Dec. Dig. 
«=»441(9).] 

Appeal from Circuit Court, Jefferson Coun- 
ty, Chancery Branch, Second Division. 

Action by the Berlin Machine Works 
against the Jefferson Woodworking Company. 
From the judgment, plaintiff appeals; de- 
fendant being granted a cross-appeal. Judg- 
ment reversed on original appeal and affirm- 
ed on cross-appeal, and cause remanded, with 
directions to set aside so much of the Judg- 
ment as awarded defendant damages and to 
dismiss Its counterclaim. 

Lawrence S. Leopold, of Louisville, for 
appellant John J. Davis, of Louisville, for 
appellee. 

SETTLE, C. J. The appellant, Berlin Ma- 
chine Works, a corporation engaged In the 
manufacturing and sale of woodworking ma- 
chines in Belolt, Wis., on September 16, 1912, 
sold to the appellee, Jefferson Woodworking 
Company, a corporation engaged in the man- 
ufacture and sale of wood products in Louis- 
ville, Ky., "subject to strikes, accidents and 



other manufacturing contingencies" to be de- 
livered in good order, the following machin- 
ery, "delivered f. o. b. car Belolt, Wis., about 
four months: One No. 87 seven-inch hard- 
wood matcher with table slide attachment 
equipped with six knife round heads for top, 
bottom, and side heads, also required heads 
for attachment necessary for making upper 
and lower dove tall out at one operation at 
rate of 100 lineal feet per minute in a clean, 
accurate, and satisfactory workmanship man- 
ner. This machine is further equipped with 
hopper feed capable of supplying 18-inch to 
42-inch stock at required speed to maintain 
feed." The contract of sale was reduced to 
writing on October 4, 1912, and signed by the 
parties respectively, but its great length 
forbids its insertion in the opinion. It con- 
tains, among others, the following provi- 
sions: 

"When machine is ready to test we [mean- 
ing appellee] are to send our man to Beloit 
with sufficient material to test, and we are to 
accept or reject machine at your [appellant's] 
factory. It is expressly understood that no 
guaranty is made us on this machine. If we 
accept machine at your factory, we assume all 
responsibility for its action thereafter." 

For the above machine and appurtenances 
appellee agreed, as stated in the contract, to 
pay, six months after date of shipment, the 
sum of $3,750, as follows: $500 cash on 
shipment ; for the remainder appellee was to 
execute Its six promissory notes, due respec- 
tively in one, two, three, four, five, and six 
months from August 4, 1918, the first five of 
which notes were to be for |641 each, and 
the sixth and last for $541.70, all to bear In- 
terest from August 4, 1918, at the rate of 6 
per cent per annum. 

It appears from the averments of the pe- 
tition, and is not denied by appellee, that the 
machine and appurtenances were ready for 
delivery to defendant at Belolt the latter 
part of July, 1913. Appellee, pursuant to 
the above-mentioned requirement of the con- 
tract, sent Its agent to Belolt to Inspect the 
machine and to accept or reject the same; 
and after full Inspection thereof the agent 
on the 9th day of August 1913, duly accepted 
the machine and appurtenances for and on 
behalf of the appellee, declaring it to be ful- 
ly satisfactory in every detail, and request- 
ed of appellant its earliest possible ship- 
ment to appellee at Louisville. Shortly there- 
after it was shipped by appellant and receiv- 
ed by appellee, immediately following which 
the latter paid the consideration of $500 in 
cash, and executed its notes, as previously 
stated, for the remainder. The three notes 
due In one, two, and three months after 
date, respectively, were paid by appellee at 
their maturity; but it having failed to pay 
those due In four, five, and six months, re- 
spectively, upon maturity, or at all, appel- 
lant brought suit against appellee thereon 
in the court below, and also upon an account 



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KW BERLIN MACH. WORKS v. JEFFERSON" WOODWORKING 00. 83 



amounting to $399.13 for material and sup- 
plies sold and delivered appellee by appel- 
lant. 

The contract evidencing the sale of the 
machine and appurtenances described also 
contains the following provisions: 

"It is agreed that title to the property men- 
tioned herein and all subsequent additions there- 
of shall remain in the Berlin Machine Works 
(the consignor) until fully paid for in cash: that 
in case of rejection of the property or failure 
to pay as stated herein undersigned (the pur- 
chaser) shall at once return and deliver the 
property in good order to consignor tab. 
cars at Beloit, Wis.; that a retention of the 
property forwarded after thirty days from 
date of shipment shall constitute a trial and 
acceptance, being a conclusive admission of the 
truth of all representations made by the consign- 
or and void all of its contracts of warranty, ex- 
press or implied. It is also agreed that in case 
of failure to pay any installment as herein pro- 
vided the whole unpaid balance shall at once 
become due and payable, and consignor or its 
agent shall have the right with or without legal 
process, to retake possession of the said prop- 
erty, and at its option either retain the same 
(all payments made theretofore to be forfeited 
as compensation for its use and as liquidated 
damages) or sell It at public auction or private 
sale: that the entire expense and cost of such 
retake, return, and resale and the deficiency, if 
any there be after net proceeds are applied, 
shall at once be paid by the undersigned. It is 
agreed that this contract is not modified or add- 
ed to by any agreement not expressly stated 
herein; that delivery at any specific time is 
waived. It is further agreed that the under- 
signed shall, at his own expense, keep the prop- 
erty fully insured against loss or damage in 
the name and for the benefit of the consignor 
in the amount of the unpaid purchase price." 

It appears from the averments of the peti- 
tion that the .appellant, instead of attempting, 
as contemplated by the above provisions of 
the contract, to retake the machine and ap- 
purtenances, asserted a lien thereon, which 
by the prayer of the petition was asked to be 
enforced by the sale of the property and the 
application of the proceeds to the three un- 
paid notes sued on. A personal Judgment 
was also asked against appellee for the 
amount of the three notes and the account 
There Is no controversy as to the account; 
appellee conceding its Indebtedness therefor. 

By its answer, which was made a counter- 
claim against appellant, appellee admits that 
tt made with It the contract set forth in the 
writing of October 4, 1912; that the ma- 
chine therein described was a special make 
of machine of the particular character de- 
sired by appellee and required for its busi- 
ness, which could not be procured elsewhere; 
that by the use of this machine It could in- 
crease the output of Its factory without any 
increase in the cost thereof, and produce a 
greater number of table slides, a commodity 
of which it was a large manufacturer, than 
It had been wont to produce without the use 
of such machine. 

It Is also alleged In the answer and coun- 
terclaim that appellee was Induced to pur- 
chase the machine by the representations of 
appellant and Its promise that It would be 
completed and ready fox delivery to It hi 



about or not later than four months from 
and after October 4, 1912, and that on the 
faith of this representation, without which 
it would not have entered Into the contract, 
it Immediately following its purchase of the 
machine, entered Into contracts for the man- 
ufacture and delivery to various purchasers 
of largely Increased quantities of table slides 
to be delivered in carload lots, such deliveries 
to begin not later than four months after 
the date of Its contract with appellant and 
that Its ability to carry out these contracts 
depended upon the delivery to tt by appel- 
lant of the machine within the four months 
specified by its contract with appellant and 
that appellant at the time of making the 
contract with appellee, was Informed of its 
purpose to make the several contracts refer- 
red to with Its customers for such sales of 
table slides. 

It Is further alleged In the answer and 
counterclaim that the appellant violated Its 
contract by failing to deliver the machine in 
the four months' time agreed for its de- 
livery, and did not In fact deliver it until the 
9th day of August 1913, more than six 
months after the time of its delivery fixed 
by the contract; that by reason of such fail- 
ure appellee was unable to begin at the end 
of four months from the date of the contract 
for the machine the Increased manufacture 
and shipment of table slides in fulfillment of 
its several contracts made with Its customers, 
which caused it the following items of loss 
and damages: That it sustained a loss of 
1819.16, excess in freight charges, in being 
compelled, on account of appellant's delay in 
delivering the machine, to ship table slides In 
less than carloads lots at local freight rates, 
Instead of the lower rates at which they 
could have been shipped by carload lots; that 
for a like reason appellee was put to an ad- 
ditional expense of $1,525.42 in being com- 
pelled to employ additional labor in manu- 
facturing table slides to carry out contracts 
with Its customers; also compelled to can- 
cel various orders it had accepted from its 
customers for table slides, upon which it 
would have made a net profit of $1,409; also 
to Incur additional expense, amounting to 
$316.17, by way of cost In crating numerous 
shipments of table slides, which crating 
would not have been necessary if the table 
slides could have been shipped in carloads; 
also to Incur an additional expense of $150 
in sending the second time an agent to Beloit 
Wis., to inspect the machine. For these sev- 
eral items of damage, aggregating $3,403.58, 
appellee asked Judgment against appellant on 
its counterclaim. 

On the hearing the chancellor gave appel- 
lant a personal Judgment against appellee 
for $1,625.02, the amount of the three notes 
sued on, with Interest from August 4, 1918, 
and the further sum of $399.13, the amount 
of the account sued on, with Interest from 
November 15, 1913. The Judgment allowed 
appellee $1,472.90, with Interest from. August 



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84 



191 SOUTHWESTERN REPORTER 



1, 1918, on its counterclaim, which sum was 
credited on the total amount allowed appel- 
lant; and for the balance thus found In fa- 
vor of the latter the Judgment enforced the 
lien asserted against the machine and ap- 
purtenances, and directed the property to be 
sold by the master commissioner In satisfac- 
tion thereof. Appellant complains of that 
judgment, and has appealed; and appellee 
has been granted a cross-appeal. 

It is apparent from what has thus far been 
said that the contract between appellant and 
appellee for the manufacture of the machine 
gave the vendee the arbitrary right to accept 
or reject the machine when or after it was 
ready for delivery, specified that its manu- 
facture was subject to manufacturing con- 
tingencies, and that delivery at any specified 
time was waived. So, taken as a whole, the 
Instrument shows on its face that time was 
not of the essence of the contract and that 
the parties knew it was highly probable that 
a machine satisfactory to the vendee could 
not be made at all, even though the contract 
provided that it was to be delivered in "about 
four months." It is to be observed that the 
machine actually made and delivered was In 
many respects a different machine from that 
described in the contract The answer ad- 
mits the perfect work of the machine and 
that It was free from' defects. In fact, it was 
a special machine made In accordance with 
the specifications furnished by appellee. Its 
only complaint is as to the delay in the de- 
livery of the machine. 

[1] In our view of the law appellee cannot 
complain of such delay, because the contract 
of purchase gave it the arbitrary right to re- 
ject the machine after It was made, and, be- 
sides, contains an express stipulation that de- 
livery of the machine at any specific time "is 
waived." 

[2 J The answer does not allege any fraud 
or mistake In the contract or in reducing it 
to writing; hence appellee Is bound by its 
terms, and the waiver it contains as to the 
time of delivery is as much a part of the 
Instrument as any other provision it eon- 
tains. In our view of these conditions, dam- 
ages resulting from loss of profits by appel- 
lee In Its business by reason of delay in the 
delivery of the machine at a certain time 
cannot be said to have been In contempla- 
tion of the parties, and are therefore not re- 
coverable. The doctrine announced in Had- 
ley v. Bazendale, 9 Hxcheq. 341, Pulaski 
Stave Co. v. Miller's Greek Lumber Co., 138 
Ky. 372, 128 S. W. 96, American Bridge Co. 
▼. Glenmore Distilleries Co., 107 S. W. 279, 
32 Ky. Law Rep. 873, Feland v. Berry, 130 
Ky. 828, 113 S. W. 425, and Pugh v. Jack- 
son, 154 Ky. 649, 157 S. W. 1082, and relied 
on by appellee, does not sustain its right to 
the damages asserted by its counterclaim. 

Nor are we able to see that there Is any 
conflict, as claimed by appellee, between the 
written and printed parts of the contract'; 
therefore no reason is shown for applying 



the rule announced by several of the au- 
thorities cited by it to the effect that, where 
there Is found to be any conflict between the 
written and printed parts of a contract, the 
written part must control. 

It is not to be overlooked that the con- 
tract contains a provision to the effect that, 
when the machine was ready to test, appel- 
lee was to send a representative to Belolt 
to make the test, with power upon doing so 
to accept or reject the machine; and If ac- 
cepted by such agent, all responsibility there- 
after was to be assumed by appellee. In 
point of fact, notwithstanding the stipula- 
tion in the contract that the machine was to 
be delivered in "about four months," the final 
inspection and acceptance of it by appellee's 
agent was not made until August 4th, which 
was six months after the expiration of the 
four months named as the time of delivery 
by the contract The failure of appellee to 
then complain of the delay in the delivery 
of the machine, and also its subsequent pay- 
ment of a part of the consideration and exe- 
cution of notes for the balance upon the de- 
livery of the machine, without making com- 
plaint of the delay or Informing appellant 
that it would sustain loss by reason of the 
delay, would seem to indicate that the de- 
fense Interposed on that ground by its an- 
swer is an afterthought 

[3] At any rate, whether so or not, we 
think the waiver as to the delivery of the 
machine at any specific time contained In 
the contract must control; and In the ab- 
sence of an allegation charging fraud or mis- 
take In the execution of the contract its 
terms or meaning cannot be varied by the 
proof introduced by appellee, whether con- 
tained in the testimony of its witnesses or 
in some of the letters found In the record. 

If, as claimed by appellee, and much of 
its evidence conducted to prove, It within 
four months succeeding the date of the con- 
tract with appellant accepted orders for 
sales and deliveries of the products of Its 
factory in contemplation of the use of the 
machine purchased of appellant in filling 
them, It did so with knowledge of the exist- 
ing delay in the delivery of tbe machine, 
also with knowledge of the probability that 
it would not be constructed at all, and In 
the face of the provision of the contract 
waiving its delivery at any specific time. 
The case we here have Is not one that au- 
thorized the recovery of damages by appel- 
lee. The damages demanded are not such 
as arise tn the natural course of things from 
the breach Itself, or such as may reasonably 
be supposed to have been contemplated by 
the parties when making the contract as the 
probable result of the breach. Elizabeth- 
town, eta, B. Co. v. Pottenger, 10 Bush, 185 ; 
J. S. Minor ft Go. v. Paragon Plaster Co., 124 
S. W. 268; Chicago City R, Co. v. Henry, 
62 111. 142; Fox v. Poor Ridge, etc., Turn- 
pike Co., 8 Ky. Law Rep. 427 ; Blood v. Her- 
ring, 61 S. W. 278, 22 Ky. Law Rep. 1725. 



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NUNNELLY r. NTTNNELLT 



86 



Here the primary difficulty in the way of 
appellee's recovery of the damages claimed 
is that there was no breach of the contract 
by the appellant What under other circum- 
stances might have constituted a breach of 
the contract by the terms of the contract 
was expressly waived and condoned by ap- 
pellee In advance. 

For the reasons Indicated, the judgment is 
reversed on the original appeal and affirmed 
on the cross-appeal, and cause remanded, 
with directions to the lower court to set 
aside so much of the judgment as awards 
appellee damages, and dismiss its counter- 
claim. 



NTJNNELLT et al. v. NUNNELLY et al 
(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. Infants <S=>38— Sale or Lard. 

Civ. Code Prac. I 489, subsec. 8, provides 
that an estate in real property may be sold by 
order of the court, in an action by a guardian 
against bis ward for the maintenance and edu- 
cation of the ward, and section 402, sabsec. 4, 
provides that in such action it most be pleaded 
and proved that the sale would benefit the ward. 
Section 493 requires the guardian to execute a 
bond before a sale. Bold, in an action by a 
guardian, where the record does not show that 
a bond was executed by the guardian, and the 
debt for which it was sought to subject the es- 
tate of the infants was not created in their edu- 
cation and maintenance, the court had no ju- 
risdiction to order a sale of the estate of the 
infants. 

[Ed. Note.— For other cases, see Infants, Cent. 
Dig. i 84; Dec. Dig. <t=>8&] 

2. Wills *s»700— Actions to Construe— 
Pasties. 

Where a testator gave his e s tat e to his wife 
for life, and at her death to be divided equally 
between his two daughters for life, and at the 
death of each to go to her child or children, and 
In the event of ate death of either of the two 
daughters leaving no child or children their 
share to go to the other daughter or her child or 
children at her death, the children of one de- 
ceased daughter of the testator were necessary 
parties to a sttit involving the construction of 
the wilL 



dI* 



Ed. Note.— For other cases, see Wills, Cent, 
i 1678; Dec. Dig. «=»700J 

Appeal from Circuit Court, Fayette County. 

Action by S. P. Nunnelly, guardian, and 
others, against Coleman D. Nunnelly and oth- 
ers. From a judgment netting aside an order 
overruling a demurrer to the petition and 
dismissing the petition, named defendant and 
others appeal. Affirmed. 

Hobos & North, of Lexington, for appel- 
lants. E. L. Hutchinson and Geo. C Morgan, 
both of Lexington, for appellees. J. T. Farm- 
er, of Lexington, guardian ad litem. 

CARROLL, 3. James A. Darnaby died in 
1890, leaving surviving him his widow, Susan 
Darnaby, who died several years ago, and two 
daughters, Mattie Weathers and Nannie Nun- 
nelly, the wife of S. P. Nunnelly, his only 
children. The fifth clause of his will reads: 



"It is my will and desire that my executrix 
keep all of my land and manage it as she may 
see proper or best and for her to have a good 
living out of the income during her life, and in 
the event of her death, then it n my will and de- 
sire that my land be divided equally between 
my two daughters, Mattie Weathers and Nan- 
nie Nunnelly, to have and to hold during their 
natural lives, and in the event of the death of 
my daughter, Mattie Weathers, her share of my 
land shall go to her child or children, and in 
the event of the death of my daughter, Nannie 
Nunnelly, then her share of my land shall go 
to her child or children, and in the event of the 
death of either of my two daughters above nam- 
ed leaving no child or children, then their share 
of my land shall go to the other daughter and 
to her child or children at her death." 

After his death, as appears from the pe- 
tition, his land was divided, and there was 
allotted to Nannie D. Nunnelly for life, with 
remainder to her children, one tract of land 
containing 84% acres .and another tract con- 
taining 27% acres. 

Nannie D. Nunnelly and her husband, S. 
P. Nunnelly, had eleven children. Seven of 
the children died, Intestate and unmarried, 
leaving surviving when this suit was decided 
in the lower court four children, viz. James, 
Coleman, Clifton, and Nancy, three of whom 
are infants. One of the seven deceased chil- 
dren died while the suit was pending, and 
Coleman, who was an infant when the suit 
was brought, has since arrived at age. 

This suit was brought in 1916 by S. P. 
Nunnelly, as guardian of his infant children, 
and S. P. Nunnelly and his wife, Nannie, as 
individuals, against the infant children, who 
are represented by J. T. Farmer, guardian 
ad litem In this suit the plaintiffs set up 
the ownership for life of Nannie D. Nunnel- 
ly In the 84% -acre and the 27%-acre tract of 
land heretofore mentioned, with remainder to 
their children. 

It further appears from the petition that 
previously, in a suit brought In the Fayette 
circuit court, these two tracts of land were 
sold, the proceeds of the 27%-acre tract be- 
ing reinvested in two houses and lots in the 
city of Lexington, but, the proceeds not be- 
ing sufficient to pay the purchase price of 
these two houses and lots, a mortgage for 
$4,600 was, by the consent of the Fayette cir- 
cuit court, placed on this property. It also 
appears that a part of the proceeds of the 
84% -acre tract was re-invested In a house 
and lot in Lexington, and the remainder of 
the proceeds of this piece of land, viz. $5,000, 
is. in the hands of the commissioner of the 
Fayette circuit court 

It further appears that the three houses 
and lots in Lexington are worth $10,000, 
subject to the mortgage lien of $4,500. It 
was also averred that S. P. Nunnelly had 
no property or Income and was in bad health 
and unable to labor for the support of him- 
self or his children. It was further aver- 
red that In order to support and educate the 
children who died, as well as the children 
who are living, debts to the amount of more 



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88 



191 SOUTHWESTERN REPORTER 



than $12,000 had been Incurred, which Indebt- 
edness was secured by a mortgage on the 
houses and lots mentioned and 217 acres of 
land owned by Nannie D. Nunnelly. 

The prayer of the petition was that the 
three houses and lots in Lexington be sold 
and the proceeds applied to the payment of 
the debt before mentioned. It was also ask- 
ed that the case be referred to the commis- 
sioner to ascertain the Indebtedness of Nan- 
nie D. Nunnelly, and that the $5,000 in the 
bands of the commissioner be applied to the 
payment of the debt and a sufficient amount 
of the property, viz. the houses and lots, be 
sold to pay the balance. 

In an amended petition, after setting out 
that all the Indebtedness was created in edu- 
cating and taking care of the children, it 
was further averred that two of the Infant 
children were of tender age, and that their 
parents were not able to furnish them the 
money to complete their education, and that 
the Income from the estate was not suffi- 
cient for that purpose, and the prayer of 
this amended petition was that the Indebted- 
ness set out In the petition be adjudged a 
lien against the life estate of Nannie D. Nun- 
nelly, and also against the remainder Interest 
of their children. 

There appears In the record we have the 
report of the guardian ad litem, but there 
is no report of the commissioner, nor Is there 
any evidence. It Is also shown that the 
court, having previously overruled a demur- 
rer to the petition, found that Nannie D. 
Nunnelly owned a life interest in the houses 
and lots in Lexington, with remainder to her 
children, and that there was an indebtedness 
of over $15,000, and that aU this indebted- 
ness was incurred in maintaining and sup- 
porting the children, including the Infant 
children now living; and the court then ad- 
judged that the $5,000 in the hands of the 
commissioner be applied to the payment of 
these debts, and that the three houses and 
lots in Lexington be sold. 

After this the master commissioner sold 
one of these houses and lots for $3,260 to 
Freeman, another one for $3,250 to Gardner, 
and the third one for $6,000 to Reese, but it ap- 
pears from the report that Reese did not com- 
ply with the terms of the sale. Subsequent- 
ly the exceptions to the report >f sale filed 
by Freeman and Gardner were set aside. The 
order overruling the demurrer of the guardi- 
an ad litem to the petition was also set aside, 
and the demurrer sustained, and the petition 
as amended dismissed. From this judgment 
S. P. Nunnelly, as guardian, S. P. Nunnelly 
and Nannie Nunnelly, Individually, and their 
child, James R, Nunnelly, prosecute this ap- 
peal. 

[1] Wie are Informed In the brief of coun- 
sel for the appellants that this suit was 
brought under subsection 3 of section 488 of 
the Cavil Code, providing that: 

"A. vested estate of an infant or of a person 
of unsound mind, in real property, may be sold 



by order of a court of equity: * * * 3. In 
an action by a guardian against his ward, for a 
sale of the estate for the maintenance and edu- 
cation of the ward." 

It Is provided In subsection 4 of section 
492 of the Code that: 

"In the actions mentioned in subsections 3, 
4 and 5 of section 489 * • * facts must be 
stated in the petition, and must be proved, 
showing that the sale will benefit the defend- 
ant" 

It Is also provided In section 493 that be- 
fore a sale is ordered the guardian must ex- 
ecute a bond, but we do not find In the rec- 
ord any evidence or any bond. It Is also ap- 
parent from the pleadings and orders of 
court that the indebtedness for which It was 
sought to subject the estate of the Infants 
was not created In their education or main- 
tenance; certainly very little of It could have 
been expended in the education and mainte- 
nance of the three living infants. Therefore 
the court had no jurisdiction to order a sale 
of the estate of these Infants for the purpose 
of satisfying the indebtedness, or any part of 
it. These reasons, briefly stated, furnish, 
conclusive evidence of the correctness of the 
Judgment of the lower court In setting aside 
the sales and in sustaining the demurrer to 
the petition as amended. 

It appears that counsel for the appellants 
as well as the guardian ad litem attempted 
to raise in the lower court the question as to 
what estate the children of Mrs. Nunnelly 
took under the fifth clause of the Darnaby 
will. Counsel for the appellants Insist that 
these children took a fee-simple title, sub- 
ject to the life estate of their mother, Nan- 
nie D. Nunnelly, and that upon the death of 
the seven children intestate and unmarried 
their Interest in the estate passed under the 
law of descent and distribution to the par- 
ents of the children ; while the guardian ad 
litem contends that under the will the chil- 
dren of Mrs. Nunnelly took a defeasible fee, 
subject to be defeated by their death before 
the death of their mother, and that, as these 
seven children died before their mother, In- 
testate and unmarried, their interest la 
the estate passed to the surviving children. 
But we do not feel at liberty to determine 
this controversy, although asked to do so, 
because It does not appear from the record 
to have been decided by the lower court 
The case, after the sale was made, was sub- 
mitted for Judgment on exceptions filed by 
the purchasers of the property, and also on 
exceptions filed by the guardian ad litem. 

The exceptions filed by the purchasers 
were: (1) That there was a lien on the prop- 
erty for taxes; (2) that it was Incumbered by 
an easement; (3) that no bond was executed 
to protect the Interest of the Infants; (4) 
that the court had no jurisdiction to order a 
sale; (5) and that the children of Mettle 
Weathers, who had a contingent Interest in 
the property, were not made parties to the 
suit 

The exceptions filed by the guardian ad 



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OOMBS v. COMMONWEALTH 



87 



litem were that the court had no jurisdiction 
to order the sale, and that the children of 
Mattle Weathers were not proper parties to 
the suit 

The order disposing of these exceptions re- 
cites that the case was submitted on the ex- 
ceptions to the- report of sale filed by the 
purchaser as well as by the guardian ad 
litem, which were sustained and the sale set 
aside. It further recites that the demurrers 
of the guardian ad litem to the first, second, 
and third amended petition were sustained, 
and the petition and amended petitions were 
dismissed. From this order this appeal is 
prosecuted. 

It does not appear from this order that 
the lower court passed at all on the question 
as to what Interest the children of Mrs. Nun- 
nelly took in the estate, or on the question 
whether this Interest on the death of any of 
these children, intestate and unmarried, be- 
fore the death of their mother went to the 
parents or to the surviving children. But, 
aet aside from this, the fifth clause of the 
will of James Darnaby gave his estate to his 
wife for life, and at her death directed that 
It should be divided equally between his two 
daughters, Mattle Weathers and Nannie Nun- 
nelly— 

"to have and to hold during their natural lives, 
and in the event of the death of my daughter, 
Mattle Weathers, her share of my land shall go 
to her child or children, and in the event of the 
death of my daughter, Nannie Nunnelly, then 
her share of my land shall go to her child or 
children, and in the event of the death of either 
of my two daughters above named leaving no 
child or children, then their share of my land 
shall go to the other daughter and to her child 
or children at her death." 

[2] it farther appears that Mattle Weath 
era died in 1881, and we learn from the ex- 
ceptions filed by the guardian ad litem that 
Mattle Weathers left children surviving her, 
This being so, it seems to us that the chil- 
dren of Mattle Weathers are necessary par- 
ties to a suit Involving the construction of 
the Darnaby will, because, according to the 
contention of the guardian ad litem, if Mrs. 
Nunnelly died without leaving surviving 
bar any child or children, then her share of 
the land would go to the children of Mattle 
Weathers, Mattle Weathers being dead; 
while, according to the construction of the 
fifth clause of the Darnaby will contended 
for by counsel for Mrs. Nunnelly, neither 
Mattle Weathers nor her children took any 
interest in the estate given to Mrs. Nunnelly 
and her children. In view, therefore, of the 
fact that we think the children of Mrs. 
Weathers are necessary parties, we refrain 
from expressing any opinion whatever as to 
bow this will should be construed. 

The case comes here, then, on the excep- 
tions filed by the purchasers at the sale, and 
on the demurrers filed by the guardian ad 
litem. On these questions we think the court 
correctly held that the sale should be set 



aside, and also correctly held that the de- 
murrers to the pleadings should be sustained. 
On a return of the case, however, the plain- 
tiffs should be permitted to file an amended 
and reformed petition setting out the relief 
to which they claim to be entitled and asking 
for a construction of the Darnaby will, and 
to this suit the children of Mrs. Weathers 
should be made parties. 
Wherefore the judgment la affirmed 



COMBS COMMONWEALTH. 
(Court of Appeals of Kentucky. Jan. 28, 1917.) 

1. Breach or the Peace «=»22 — Illegal 
Sale op Liquor— Frequent Conviction— 
Recognizance— Breach— Action. 

An action by the commonwealth in the na- 
ture of a quasi criminal proceeding on the recog- 
nizance to keep the peace, given after second 
conviction of illegal sale of intoxicating liquors, 
is a permissible remedy to recover for violation 
of the bond. 

[Ed. Note.— For other cases, see Breach of the 
Peace, Cent Dig. | 14; Dec. Dig. «=>22.] 

2. Breach or the Peace «=>16 — Bond to 
Keep Peace— Recognizance. 

Or. Code Prac. §§ 382-393, deals generally 
with security to keep the peace, and section 393 
thereof provides that if the security so required 
be given in court it may be by a recognizance 
entered into in open court upon the records by 
the clerk. Ky. St § 2557b, Bubsec. 3, as to il- 
legal sales of intoxicating liquor, provides that 
on the second or any subsequent conviction, the 
court shall require the defendant to execute 
bond in the sum of $200 to be of good behavior, 
but the court may in its discretion increase the 
amount of the bond. Held that on a second con- 
viction for illegal sale of intoxicating liquors, the 
recognizance as provided in the Criminal Code 
could be taken instead of a technical bond. 

[Ed. Note.— For other cases, see Breach of 
the Peace, Cent Dig. ii 7, 12; Dec. Dig. «=> 
16.] 

3. Breach ov the Peace <©=22 — Bond to 
Keep Peace— Recognizance. 

In an action by the state on a recognizance 
to keep the peace after second conviction of il- 
legal sale of intoxicating liquor, which recog- 
nizance was entered into without objection, It 
will be presumed in the absence of attack upon 
the order for the recognizance that the court 
found the necessary facts before making the 
order. 

[Ed. Note.— For other cases, see Breach of 
the Peace, Cent Dig. f 14; Dec. Dig. <8=>22.] 

4. Breach or the Peace <g=»22 — Bond to 
Keep Peace— Recognizance. 

It will be presumed in the absence of appeal 
from the order for alleged excessive amount of 
the recognizance that the sum of $1,000 was not 
excessive, though Cr. Code Prac. § 393, provides 
that the sum shall be $200, but that in its dis- 
cretion the court may increase the amount 

[Ed. Note. — For other cases, see Breach of the 
Peace, Cent Dig. { 14; Dec Dig. <S=»22.] 

5. Breach or the Peace <8=»19 — Bond to 
Keep Peace— Recognizance. 

Under such act where one convicted of il- 
legal sale of intoxicating liquors was incorrigi- 
ble, and the docket of the court at each term 
was plastered with indictments against him, it 



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191 SOUTHWESTERN REPORTER 



was not an abase of discretion for the court to 
fix a recognizance to keep the peace at $1,000. 

[Ed. Note.— For other cases, see Breach of the 
Peace, Cent. Dig. § 13 ; Dec. Dig. <8=19.] 

Appeal from Circuit Court, Perry County. 

Action by the Commonwealth of Kentucky 
against Jack Combs and another. Judgment 
for complainant, and defendant Jack Combs 
appeals. Affirmed. 

C. W. Napier, of Hazard, for appellant M. 
M. Logan, Atty. Gen., for the commonwealth. 

THOMAS, J. Brltt Combs was convicted 
In two cases at the August, 1914, term of the 
Perry circuit court of selling liquor in viola- 
tion of the local option law. On the third 
day of the following May term of that court 
he was convicted In one case of the same of- 
fense, and on the fourteenth day of that same 
term he was again convicted In seven cases 
for the same offense. Immediately after the 
rendition of judgments against him on the 
latter day, the court required him to execute 
bond as provided by subsection S of section 
• 2557b of the Kentucky Statutes; the sub- 
section being as follows: 

"On the second or any subsequent conviction 
for a violation of said act, or any of its amend- 
ments, the court shall require the defendant to 
execute bond in the sum of two hundred dollars 
to be of good behavior for the period of twelve 
months. 

"The court may, in his discretion, increase 
the amount of the bond, and if the bond is not 
given the defendant shall be committed to the 
county jail for a period not exceeding ninety 
days, to be fixed by the court." 

After this, and upon the same day, Brltt 
Combs, together with his surety, the appellant 
Jack Combs, appeared In open court and en- 
tered into recognizance with the common- 
wealth of Kentucky in the penal sum of 
$1,000, that being the amount of the bond re- 
quired by the court, conditioned that — 
"the said Dr. Britt Combs would keep the peace 
and be of good behavior towards all citizens of 
the commonwealth for a period of 12 months from 
this date, and would not, during said period of 
time, commit any offense against the laws of 
this commonwealth, and would not in said pe- 
riod of time sell any spirituous, vinous or malt 
liquors or mixtures thereof, or liquid mixtures 
or decoctions which produce or cause intoxica- 
tion, either directly or indirectly, and would not 
in said period of time suffer or permit any such 
liquors to be sold, disposed of, obtained or fur- 
nished on premises in his occupation or control, 
and covenanted that in default of any obligation 
thereof they would pay to the commonwealth of 
Kentucky the sum of $1,000, which bond was en- 
tered in open court" 

At the following August, 1915, term of the 
court, the principal in the recognizance, Brltt 
Combs, was indicted, tried, and convicted for 
six separate violations of the local option 
law, which violations, or at least some of 
them, are shown to have been committed 
after the taking of the recognizance at the 
May, 1915, term of the court. This suit was 
filed by the commonwealth, through the com- 
monwealth's attorney of that judicial dis- 
trict, against Brltt Combs and his surety, 



Jack Combs, seeking a Recovery of the 
amount stipulated in the bond upon the 
ground that Its condition had been broken by 
the defendant Britt Combs selling liquor in 
violation of law after Its execution. 

A demurrer to the petition was overruled, 
and a written answer filed, which denied 
everything in the petition except the entering 
In the recognizance. The suit was dismissed 
as to the defendant Brltt Combs, but pro* 
ceeded as to his surety, Jack Combs, and upon 
trial before the court, a jury having been 
waived, judgment was rendered against him 
for the full amount stipulated In the recog- 
nizance, and to reverse that judgment he 
prosecutes this appeal. 

The grounds urged for a reversal are: (1) 
"Because plaintiff's action was based upon 
the personal recognizance of the defendants 
Dr. Britt Combs and Jack Combs, and neither 
the defendant Dr. Brltt Combs or Jack Combs 
was required to sign any bond to keep the) 
peace, or any other writing) or obligation 
whatever, and in fact the defendants nor 
either of them signed any bond whatever nor 
neither was required by the court to do so." 
(2) Because the record does not show by 
separate and distinct order that the court re- 
quired the execution of the recognizance, nor 
does It appear of record that the violations 
for which Brltt Combs was indicted and con- 
victed at the May, 1015, term of the court 
occurred subsequent to the August, 1914, 
term of the court In other words, complaint 
is made that it is necessary for the records 
of the court to show, in order for the exer- 
cise of the authority to require the bond, not 
only that there was a second conviction, but 
that such conviction was for an offense com- 
mitted after the first conviction. 

That courts are vested with power and 
authority, under proper showing, to require 
violators of the law to enter Into obligation 
to keep the peace and otherwise observe the 
rules of rectitude and decency, has long been 
upheld. The courts were vested with such 
authority in many Instances under the com- 
mon law. 4 Blackstone's Commentaries, pp. 
254 and 255. The end sought to be accom- 
plished Is twofold, prevention of future mis- 
behavior of defendant and to reform him. 
Many of the states have enlarged the com- 
mon-law authority in regard to this partic- 
ular power of the courts, and so long as it 
is confined in its exercise to such Instances 
as will have a reasonable and probable tend- 
ency to accomplish either of the purposes 
before mentioned the statutes have been up- 
held. State v. Woodard, 7 Kan. App. 421, 
423, 63 Pac. 278; State v. Miller, 56 Pac 
1132.1 In 12 Oyc. p. 973, the authority of 
the court or presiding judge to require such 
bonds as we now have under consideration, 



» Reported In full In the Pacific Reporter; re- 
ported a* a memorandum decision without opinion 
In 60 Kan. 857. 



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COMBS y. COMMONWEALTH 



both at common law and by statute, la thus 
stated: 

"At common law the judge nay, in cases of 
conviction of gross misdemeanors, require the 
convict to give security for his future good be- 
havior. In some of the states the power of re- 
quiring security for good behavior, in addition 
to the infliction of a punishment, is conferred 
upon the courts by statute. A bond, when re- 
quired, should be a general bond for good be- 
havior, and not a special recognizance against 
the doing of a specific act not in itself a gross 
misdemeanor." 

The same principle Is stated in 5 Cyc. 1028, 
and has been recognized by this court contin- 
uously from Its creation. 

[t] By the demurrer it may be insisted 
that the character of proceeding or remedy 
employed in this case was called In question, 
for it might be contended that the obligation 
being made in the nature of a recognisance 
should be enforced by an order taking it for 
forfeited, and upon which a summons for 
the defendants should have been Issued, as 
la the practice in cases of a forfeited ball 
bond; but this is untenable for several rea- 
sons, among which are that by statute the 
commonwealth Is given a right to proceed 
where certain characters of punishments are 
Involved, especially where the infliction of 
a penalty is sought to be enforced, by a penal 
action In the nature of a civil proceeding 
such as this is. The supposed analogy be- 
tween the remedy for the enforcement of a 
forfeited ball bond and this character of pro- 
ceeding does not obtain, as the right to a 
forfeiture of bail bonds is manifested by the 
fact of the defendant's absence in court, or 
at the place where his bond required him to 
be, while in this character of case the right 
of the commonwealth to recover must be 
shown by testimony heard. Furthermore, In 
5 Cyc. p. 1028, with reference to this charac- 
ter of remedy, this statement is found: 

"It is, however, to be observed that, strictly 
speaking, such proceedings are not criminal or 
even quasi criminal in their character, and that 
the rules governing criminal proceedings are 
not applicable to them." 

But whether a proceeding to require one 
to execute bond to keep the peace or to se- 
cure his good behavior is a criminal or civil 
proceeding, we are convinced that an action 
by the commonwealth of the nature of the 
one employed in this case is a permissible 
remedy to recover for a violation of the bond 

[2] Recurring now to the grounds herein- 
before stated for a reversal, and considering 
the first one, It is sufficient to say that the 
question presented Is not to be determined 
by what may be the technical definition of 
the word "bond," as used in the statute, nor 
to determine what 9s ordinarily included 
within the scope of that term when used In 
such connections. Subsection 3 of the stat- 
ute, supra, under which the obligation sued 
on was taken, was enacted long after the 
enactment of chapter 2, title 10, of the Crim- 
inal Code of Practice. That chapter of the 
Criminal Code deals generally with, the sub- 



ject of, and authority for, the requiring of 
bonds to keep the peace or for good behavior, 
and section 898, which is a part of it, is: 

"If the security required in this chapter be 
given in court, it may be by a recognizance en- 
tered into in open court, and entered upon the 
records by the clerk." 

Subsection 3 of the section of the statute, 
supra, is but an enlargement of the scope of 
that chapter of the Criminal Code, including 
the creation of additional instances when 
such bond may be required. It is to be pre- 
sumed that the method of taking the bond 
therein provided for, as well as the charac- 
ter of the obligation which the court might 
require, should be governed by the provisions 
of the Criminal Code of Practice then in ex- 
istence applicable to that subject, and that 
It was recognized by the Legislature when It 
enacted subsection 3 of the statute that it 
would be competent for the court, if the 
bond should be executed in court, to accept 
It in the form of a recognizance. We there- 
fore conclude that the court bad authority 
to require the obligation entered into to be 
executed as a recognizance and entered upon 
the records of the court. 

[3] Considering now the second point urg- 
ed, it may be admitted, as it is true, that be- 
fore the bond can be exacted by the court the 
second conviction must be for an offense 
which was committed after the first convic- 
tion. Hyser v. Commonwealth, 116 Ey. 410, 
76 S. W. 174, 25 Ky. Law Rep. 608 ; Sharp v. 
Commonwealth, 124 S. W. 316. But in each 
of those cases the question was raised by 
a direct appeal from the order or Judgment 
of the court requiring bond, and the question 
was presented to this court In a direct pro- 
ceeding prosecuted for the very purpose of 
calling in question and to reverse the court's 
Judgment wherein the bond was exacted. 
The facts are altogether different in the case 
with which we are dealing. There was no 
appeal from the order of the court requiring 
the execution of the recognizance. On the 
contrary, it was executed without question, 
and after, as it appears of record, there 
had been previous convictions of the defend- 
ant Britt Combs at the August, 1014, term of 
the court. In the order requiring the recog- 
nisance to be executed it appears that the 
court found that the defendant Britt Combs 
had been twice convicted in that same court 
for the offense of selling liquor in violation 
of the local option law, and in this collateral 
attack of that order it will be presumed (es- 
pecially if it is shown that the second con- 
viction was at a subsequent term of court to 
the first conviction) that the court found the 
requisite facte to authorize it to require the 
bond to be executed. In other words, it will 
now be presumed that the rule as to the sub- 
sequent commission of the second offense as 
announced in the cases, supra, was adhered 
to and observed by the court when It made 
the order requiring the execution of the bond. 
If the court's Judgment in that particular 



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90 



191 SOUTHWESTERN REPORTER 



(Ky. 



was erroneous because of a noncompliance 
with the rule as held In the cases to which 
we have adverted, It was the duty of the de- 
fendant, If he desired to question It, to have 
prosecuted an appeal. This he failed to do, 
and In this collateral attack the ancient and 
long-adhered to rule that the necessary facts 
conferring Jurisdiction will be presumed will 
be applied. 

[4] What we have Just said also applies to 
the objection that the court should not have 
required a bond for a larger sum than $200. 
But If we were at liberty to review the order 
of the court In this particular, It will be 
found In the last paragraph of the subsection 
of the statute, supra, that the court in its 
discretion may Increase the amount of the 
bond, and we do not find wherein that dis- 
cretion was abused In this case. The very 
purpose of lodging Buch discretion with the 
court was to unable It to make the preventive 
remedy apply to the facts of the case so as to 
accomplish the desired purposes, one of which 
Is, as we have seen, to prevent a recurrence 
or repetition of the law's violation. 

[S] The defendant Brltt Combs is shown to 
have been Incorrigible. The docket of the 
court at each term was plastered with Indict- 
ments against him, and If the court has au- 
thority to enlarge the fixed sum of $200 found 
In the statute In any case at all, under the 
discretion given to it, It most certainly should 
have done so in this case, and under the facts 
presented we do not find that It abused that 
discretion. 

Perceiving no errors, the Judgment is af- 
firmed. 



LOCK et al v. STOUT, Circuit Judge. 
(Court of Appeals of Kentucky. Jan. 10, 1917.) 

1. Insurance «J=»50— Stock Companies— Re- 
ceiver— Assessments. 

Under Ky. St } 647, making stockholders 
liable to creditors for unpaid stock subscrip- 
tions, the receiver of an insolvent Insurance 
company may collect such subscriptions. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. S! 8, 68-91; Dec. Dig. «=>50.] 

2. Insurance <8=50 — Stock Companies — 
Stockholders' Liability to Receiver. 

Under Ky. St { 647, making stockholders 
liable to creditors for unpaid subscriptions, and 
also for the par value of their stock, the receiver 
of an insolvent insurance company cannot en- 
force the last-named liability, since it is not a 
corporate asset. 

[Ed. Note. — For other cases, see Insurance, 
Cent Dig. ff 8, 58-81; Dec. Dig. <8=50.] 

3. Insurance ®=»50— Stock Companies — 
Receivers— Assessments. 

Civ. Code Prac. | 65, authorizing receivers 
to sue in the county of their qualification, ap- 
plies to the receiver of an insolvent insurance 
company suing its stockholders living in other 
counties for unpaid subscriptions, since such 
collection of the assets is incidental to the re- 
ceivership. 

[Ed. Note. — For other cases, see Insurance, 
Cent Dig. tf 8, 58-61; Dec. Dig. «=»50.] 



ets»For other 



4. Insurance «=50 — Stock Companies — 
Receivers— AcrmoN Aoainw Stockhold- 
ers. 

Under Ky. St I 75S, authorising the insur- 
ance commissioner to secure injunctions against 
the doing of business by insolvent insurance 
companies, and authorising enjoining court t» 
settle such company's affairs, etc., such court 
has jurisdiction of a receiver's suit to collect 
unpaid stock subscriptions, although the stock- 
holders reside outside the county. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. H 8, 58-61; Dec. Dig. «=>50.) 

Petition by J. S. Lock and others for a 
writ of prohibition against Robert L. Stout, 
as Judge of the Franklin Circuit Court. De- 
murrer to petition sustained, and writ de- 
nied. 

Hazelrigg ft Hazelrigg, of Frankfort, Black, 
Black ft Owens, of Barbourvllle, Vaughan A 
Howes, of Palntsville, and J. P. Hobson * 
Son, of Frankfort, for petitioners. Scott & 
Hamilton and H. V. McChesney, all of Frank- 
fort, for respondent 

SETTLE, a J. The petitioners, J. S, 
Lock and others, seek In this case, by peti- 
tion filed In this court, a writ of prohibition 
against the respondent Robert L. Stout as 
judge of the Franklin circuit court, to pre- 
vent him from further proceeding In the 
hearing or determination of the matters in 
controversy between the petitioners and J. 
W. Jeff ers, receiver of the Central Life In- 
surance Company, raised by the answer and 
cross-petition of the latter filed In an action 
pending therein, brought by M. C. Clay, in- 
surance commissioner of the state of Ken- 
tucky, against the Central Life Insurance 
Company growing out of Its Insolvency and 
the liquidation of its business and affairs. 

The Central Life Insurance Company was 
Incorporated under the laws of the state of 
Kentucky on July 8, 1911, with an author- 
ized capital stock of $100,000, which, on the 
17th day of January, 1912, was increased to 
$600,000. The business for which the corpo- 
ration was organized and in which it en- 
gaged was that of Insuring the lives of per- 
sons who might be found willing to purchase 
of it Insurance and accept of it policies there- 
for. 

In December, 1915, the action mentioned 
was instituted in the Franklin circuit court 
by the Insurance commissioner under and by 
virtue of section 753, Ky. Statutes, it being 
alleged in the petition that the insurance 
company was Insolvent necessitating the 
winding up of its affairs, and praying that 
an injunction be issued restraining it from 
further doing business, and that a receiver 
be appointed to take charge of its property 
and assets, collect what was due It and set- 
tle its obligations. The Central life Insur- 
ance Company making no defense to the ac- 
tion, judgment went by default the injunc- 
tion was granted, and J. W. Jeffers, master 
commissioner of the Franklin circuit court. 



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Ky.) 



LOCK v. STOUT 



91 



was appointed receiver to take charge of, 
wind up, and settle the affairs of - the Insur- 
ance company. The company was ordered 
to turn over all of Its property, assets, 
boots, and papers to the receiver, and the 
latter to ascertain the assets and liabilities 
of the company and report same to the court, 
and, under the court's directions, to do any 
and all things necessary to the proper and 
legal settlement of the affairs of the com- 
pany. On October 30th, the receiver filed In 
the action an answer, which he made a cross- 
petition against the petitioners and others, In 
which It was alleged that the Central Life 
Insurance Company's Indebtedness amounted 
to $82,000; that Its available assets, exclu- 
sive of stock subscriptions, did not exceed 
958,000; and that there was due it unpaid 
stock subscriptions amounting to about $189,- 
000, the immediate collection of which was 
necessary In order to pay the debts and wind 
tip the affairs of the company. It was fur- 
ther alleged in the answer and cross-petition 
that the unpaid stock subscriptions were ow- 
ing by the 183 persons, including the peti- 
tioners, made defendants therein, and the 
amount due from each of them specifically 
set forth. The defendants reside In various 
counties of Kentucky, a few of them outside 
of the state, and none of them In Franklin 
county. The prayer of the answer and cross- 
petition asked that the receiver be given au- 
thority to collect of each of these alleged de- 
linquents, in the one action brought by the 
insurance commissioner, the amount owing 
by him. The petitioners herein, following 
the service of summons upon each of them 
on the cross-petition, filed pleas to the ju- 
risdiction of the Franklin circuit court, to 
which the court sustained a demurrer filed by 
the receiver, thereby holding that it had Ju- 
risdiction in that action of the persons of the 
defendants, and to pass on all questions that 
might be involved In the attempted collec- 
tion by the receiver of the unpaid stock sub- 
scriptions owing by them respectively. Their 
dissatisfaction with this ruling induced the 
petitioner to institute in this court the pres- 
ent action for a writ of prohibition. 

[1, 3] It Is contended by the petitioners 
that as the liability of the 183 defendants in 
the cross-petition Is fixed and distinct — that 
Is, a separate obligation claimed against 
each and the defense of each arises from or 
may upon varying facts — and all of them re- 
side in counties other than Franklin, the 
Franklin circuit court has no jurisdiction to 
enforce these several liabilities against them. 
On the other hand, it is contended by the re- 
spondent that the question of jurisdiction 
here raised by the petitioners was settled 
adversely to their contention by the opinion 
of this court in White v. Harbeson, Judge, 
168 Ky. 224, 183 S. W. 476, L. R. A. 1916D, 
1129, in which it was held that in an action 
brought in a court of equity by creditors to 
settle the affairs, of an Insolvent co-operative 



Insurance corporation in the hands of a re- 
ceiver, upon cross-petition of the receiver 
against the policy holders, who were also 
stockholders, seeking to enforce their liabili- 
ty for an assessment permissible under 
the insurance company's charter and made 
by the court, the court would take and 
could properly exercise jurisdiction to grant 
the relief sought, though some of the policy 
holders resided and were summoned in other 
counties than that in which the action was 
pending; as such relief was ancillary or inci- 
dental to the main object of the action, it 
would prevent a multiplicity of raits and 
avoid the great expense attendant upon 
bringing separate suits at law against each 
policy holder. After rejecting in that case 
the same objections to the jurisdiction of the 
court that are here urged by the petitioners, 
and quoting from the several authorities 
deemed sufficient to support our reasons 
therefor, we, la the opinion, said: 

"It la apparent, therefore, that while a 
creditor of an insolvent corporation may sne 
a stockholder at law upon his statutory liabil- 
ity, as allowed in Williams' Ex'r v. Chamber- 
lain, 123 Ky. 160, 94 8. W. 29, 29 Ky. Law 
Rep. 600, that fact does not militate against 
the right of the creditor to sue in equity an in- 
solvent corporation and its stockholders to en- 
force the statutory liability of the stockholders. 
The right to bring such equitable action has 
been recognized and allowed, not only in the 
case of Caatleman v. Holmes, 4 J. J. Marsh. 
1, supra, but also in the more recent case of 
Gamewell Fire Alarm Tel. Co. v. Police Tel. 
Co., 116 Ky. 780, 76 S. W. 862, 25 Ky. Law 
Rep. 1010. The action last mentioned was in- 
stituted by the creditors in the chancery court, 
by judgment of which the statutory liability 
of a nonresident stockholder was enforc- 
ed. * * • 

"It is our conclusion that, in an action 
brought to settle the affairs of an insolvent cor- 
poration in the hands of a receiver and wherein 
the latter is seeking to enforce the statutory 
liability of the stockholders, a court of equity 
has jurisdiction to (rant the relief here sought 
against the several stockholders, though the 
amounts sued for be less than $50, respectively, 
and they reside and were summoned in a coun- 
ty or counties other than that in which the ac- 
tion was brought; and, further, that such ju- 
risdiction exists notwithstanding the fact that 
the receiver had a concurrent remedy at law 
by instituting actions at law against each stock- 
holder to enforce his liability, in the county of 
his residence. In other words, such jurisdic- 
tion is possessed and may be exercised by the 
court because the right of the receiver to re- 
cover of each stockholder is incident to the 
settlement of the corporation's affairs; and for 
the further reason that to do so will prevent 
a multiplicity of suits and enable the court to 
do complete justice in the action before it. 

"If right in the conclusion that the Kenton 
circuit court, law and equity division, has the 
jurisdiction claimed and attempted to be ex- 
ercised by it, it follows that the venue of the 
action is fixed by section 65, Civil Code. More- 
over, the expenses incident to the enforcement of 
the equitable remedy invoked by the receiver 
will be insignificant as compared with what 
such expense would be if he were compelled to 
resort to suits at law against the several stock- 
holders sought to be held liable. Manifestly, if 
a suit at law against each stockholder, in the 
county of his residence, were required, the costs 
resulting in each of such action would amount 
to nearly as much, and, in Borne instances, more 



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92 



191 SOUTHWESTERN REPORTER 



than the amount of the assessment owing, and, 
in any event, such costs, together with those 
in the main action, when paid, would leave 
nothing of consequence to be distributed to the 
creditors of the corporation." 

We fall to see the distinction attempted to 
be made by counsel for the petitioners be- 
tween this case and that of White v. Harbe- 
son, Judge, supra. In that case the recovery 
sought by the receiver on cross-petition 
against the stockholders respectively, who 
were also policy holders, was $3 on each $100 
of Insurance In force which the company bad 
granted; and, as It was a co-operative or 
assessment company, the assessment was 
made as required by section 709a, Ky. Stat- 
utes. But the liability imposed by the as- 
sessment upon the stockholders was several 
and distinct No single stockholder was 
liable for the amount assessed against any 
other stockholder, and the stockholders re- 
sided In various counties of the state. In 
the instant case, the liability of the stock- 
holders sought to be enforced by the receiver 
does not arise out of an assessment, but out 
of their voluntary subscriptions for stock 
in the insurance company, wbich it is alleged 
have not been paid. The liability thus in- 
curred, like that of the stockholders In White 
v. Harbeson, supra, Is several and distinct. 
But the fact that It arises out of contract, 
Instead of an assessment, does not in prin- 
ciple differentiate this case from that of 
White v. Harbeson, supra. In either case, 
the recovery may be had by the receiver 
for the purpose of paying the debts .of the 
corporation and settling its affairs. The re- 
ceiver may sue for unpaid stock subscrip- 
tions, for, under section 647, Ky. Statutes, 
they constitute assets of the Insolvent cor- 
poration, and for that reason may be sub- 
jected to the demands of its creditors. Louis- 
ville Banking Co. v. Elsenman, 94 Ky. 83, 
21 S. W. 631, 1049. 14 Ky. Law Rep. 705, 19 
It. B. A. 684, 42 Am. St. Rep. 335; Tiger 
Shoe Mfg. Co's Trustee v. Shanklin, 125 Ky. 
715, 102 S. W. 295, 31 Ky. Law Rep. 298, 
31 L. R. A. (N. S.) 365. The corporation 
might as such, by suit prior to its insolven- 
cy, have enforced the collection of these un- 
paid subscriptions (though not in a single 
action against all of them), and when, by 
reason of its Insolvency, its property and af- 
fairs were put into the hands of the receiv- 
er, It became his duty to collect the unpaid 
subscriptions for the benefit of the creditors 
of the corporation and to settle its affairs; 
In doing which he may, for the reasons stat- 
ed in White v. Harbeson, supra, in the one 
action brought to settle the affairs of the 
corporation and In which be was appointed 
receiver, sue all stockholders for unpaid sub- 
scriptions owing by them to the corporation. 

[2] The receiver Is without power to col- 
lect of the stockholders of the Insolvent cor- 
poration the double liability Imposed upon 
them by section 547, Ky. Statutes, supra, be- 
cause such double liability arises, not only 
out of the insolvency of the corporation of 



which they are stockholders, but more par- 
ticularly because of the fact that its assets 
have been exhausted and its debts in whole 
or in part left unpaid. In other words, the 
double liability imposed upon the stockhold- 
ers of the corporation by the statute is in 
the nature of a security to the creditors, and 
not an asset of the corporation; and we so 
declared in Farmers* Bank of Wickliffe v. 
Scott, 144 Ky. 575, 139 S. W. 801, in which 
it was held that for the reasons stated the 
assignee of an insolvent bank could not col- 
lect from the stockholders the double lia- 
bility imposed by the statute, and that such 
liability could be enforced at the cult of a 
creditor or creditors alone. 

Without further pursuing the analogy be- 
tween the Instant case and White v. Harbe- 
son, Judge, supra, it is sufficient to say it 
would seem that all the reasons given in the 
latter case for the conclusion therein reached 
that the Kenton circuit court had Jurisdiction 
in the one action brought to settle the affairs 
of the Kentucky Fire Insurance Company, at 
the suit of the receiver on cross-petition, to 
compel of the stockholders In the Kentucky 
Fire Insurance Company the payment of the 
amounts assessed against them respectively 
in behalf of the creditors of the insurance 
company, exist and apply in behalf of the 
receiver In the instant case. In other words, 
the jurisdiction held to be in the Kenton cir- 
cuit court in that case is, in, the Instant case, 
possessed and may be exercised by the Frank- 
lin circuit court, because the right of the re- 
ceiver to recover of each stockholder Is an- 
cillary or incident to the settlement of the 
corporation's affairs; and for the further 
reason that to allow the recovery by the re- 
ceiver and here attempted will prevent a 
multiplicity of suits and enable the court to 
do complete justice in the one action before it. 

[4] Iu addition to his claim of jurisdiction 
for the reasons stated in White v. Harbe- 
son, Judge, supra, the respondent contends 
that such jurisdiction is expressly conferred 
upon the Franklin circuit court by section 
753, Ky. Statutes, which provides: 

"If he is of the opinion, upon examination or 
other evidence, that a foreign insurance com- 
pany is in an unsound condition, or if it has 
failed to comply with the law, or if its officers 
or agents refuse to submit to examination or 
to perform any legal obligation in relation there- 
to, or. if a life insurance company, that its ac- 
tual funds are less than its liabilities, he shall 
revoke or suspend all certificates of authority 
granted to it or its agents, and shall cause 
notifications thereof to be published in some 
newspaper of this state having general circu- 
lation therein; and no new business shall there- 
after be done by it or its agents in this common- 
wealth while such default or disability con- 
tinues, nor until its authority to do business is 
restored by the commissioner. If, upon exam- 
ination, he is of opinion that any domestic in- 
surance company is insolvent, or has exceeded 
its powers, or has failed to comply with toy 
provision of law, or that its condition is such 
as to render its further proceedings hazardous 
to the public or to its policy holders, he shall 
revoke or suspend all licenses issued to it or 
its agents, and cause notice thereof to be pub- 



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ALlLEN v. MOORE 



93 



Sabed In some paper having general circula- 
tion in the state; and it is hereby also made 
the duty of the Commissioner to immediately 
notify the general agents of the foreign or do- 
mestic company suspended of the suspension, 
and it shall be the duty of said agents to im- 
mediately notify persons insured by them of 
such suspension by the commissioner, and for 
failure so to do upon the part of the commis- 
sioner or agent, he shall be fined not less than 
fifty nor more than one hundred dollars for each 
offense; he shall also apply to the judge of the 
Franklin circuit court, or the judge of the cir- 
cuit court where the company is located, to 
issue an injunction restraining it in whole or 
in part from further proceeding with its busi- 
ness. Such judge may, in his discretion, issue 
the injunction forthwith, or upon notice and 
hearing thereon, and after a full hearing of the 
matter may dissolve or modify such injunction 
or make it perpetual; and may make all orders 
and decrees needful in the premises and may 
appoint agents or receivers to take possession 
of the property and effects of the company, and 
to settle its affairs subject to such rules and 
orders as the court may from time to time pre- 
scribe, according to the course of proceedings in 
equity: Provided, that if any injunction issued 
hereunder be dissolved, and the court or judge 
dissolving the same shall not state in the or- 
der or decree of dissolution that there were rea- 
sonable grounds for procuring such injunction, 
the cost of such proceeding shall be taxed and 
paid out of the funds of the Insurance Depart- 
ment" 

It win be observed that, in addition to the 
other powers conferred upon him by the pro- 
visions of the section supra, the Insurance 
Commissioner of the State, in the event he 
discovers that any domestic Insurance com- 
pany Is insolvent, or its condition is such as 
to render its further proceedings hazardous 
to the public or to its policy holders, has 
the power to revoke its license, and also to 
apply to the judge of the Franklin circuit 
court, or the judge of the court where the 
company Is located, to Issue an Injunction 
restraining; it in whole or in part from fur- 
ther proceeding with its business. Under the 
right of election thus conferred, if the com- 
missioner select the Franklin circuit court 
for the purposes or any of them indicated, 
the judge of that court would possess com- 
plete Jurisdiction to exercise all the powers 
which are conferred by the subsequent pro- 
visions of the section, which powers are quite 
broad and comprehensive as, among other 
things, they declare that the judge "may 
■ake all orders and decrees needful in the 
premises and may appoint agents or receivers 
to take possession of the property and effects 
of the company, and to settle Its affairs sub- 
ject to such rules and orders as the court 
stay from time to time prescribe, according to 
the course of proceeding in equity." The 
authority here conferred is broad enough to 
empower the judge of the Franklin circuit 
court, in the character of case that we here 
have, to render any judgment or enter any 
order that may be necessary to the proper 
winding up or settling; of the affairs of the 
Insurance company, including the payment, 
through a receiver, of the obligations of the 



company out of Its assets, and the collection, 
through the receiver, of obligations due the 
company which when collected would consti- 
tute a part of Its assets. In the exercise of 
the powers thus conferred, the Franklin cir- 
cuit court should be permitted to wind up the 
affairs of the Insurance company as expedi- 
tiously and with as little cost as possible 
consistent with the rights of all concerned. 
We think It clear that the meaning of the 
statute Is that all proceedings looking to a 
complete settlement of the affairs of the in- 
surance company shall be had In the court 
in which the action may be brought by the 
Insurance Commissioner, and In the one ac- 
tion. While It may be somewhat of a hard- 
ship to compel persons residing in counties 
other than Franklin, owing unpaid subscrip- 
tions, to resist in the Franklin circuit court 
recovery therefor sought against them in 
that court, they would not be deprived of 
making such defense therein; and the hard- 
ship to which they would be subjected would, 
after all, be inconsiderable when compared 
with the enormous cost that would result 
from the filing of a separate action by the 
receiver against each delinquent stockholder 
in the county of his residence, which would 
eventually have to come from the stockhold- 
ers not indebted to the corporation for their 
stock, to the> extent that such cost would 
reduce the assets of the corporation which 
would otherwise be distributed in satisfac- 
tion of its obligations. 

It is not to be overlooked that stock sub- 
scriptions remaining unpaid constitute a 
trust fund for the benefit of the corporation's 
creditors, and, in order that none of the 
stockholders owing unpaid subscriptions may 
escape responsibility therefor, all may be 
sued alike, regardless of residence, by the 
receiver In the one action brought to settle 
the affairs of the corporation ; such right of 
action in the receiver being- ancillary to the 
main suit. 

It is therefore our conclusion that the re- 
spondent, as Judge of the Franklin circuit 
court, possesses and may rightfully exercise 
the Jurisdiction asserted by him In this case. 
Therefore his demurrer to the petition Is 
sustained, and writ of prohibition prayed by 
the petitioners Is denied. 



ALLEN v. MOOKE et at 

(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. Courts <8=»172 — Jurisdiction — Police 
CouBT8— "Concurrent Jurisdiction." 
Const I 143, provides that the Legislature 
may confer civil jurisdiction on police courts 
in cities of the sixth class having a population 
of 260 or more, which jurisdiction shall be uni- 
form throughout the state and not exceed that 
of justices of the peace. Ky. St J 3710. defines 
the jurisdiction of police courts for such towns 
and confers a civil jurisdiction "concurrent with 
justice courts in civil actions and proceedings." 



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101 SOUTHWESTERN REPORTER 



(Ky. 



Const f 142, provides that jurisdiction of jus- 
tices of the peace shall be coextensive with the 
county and shall be uniform throughout the 
state. Held, that civil jurisdiction of police 
courts is not confined to corporate limits of the 
town, but covers the entire county to be exercis- 
ed within the territory from which the police 
judge is elected, and subject to the rules of pro- 
cedure prescribed by law for justice courts 
(citing Words and Phrases, First and Second 
Series, Concurrent Jurisdiction). 

[Ed. Note.— Por other cases', see Courts, Cent 
Dig. §§ 82%, 112-117; Dec. Dig. <8=>172.] 

2. J USTICES of the Pkacb <8=>73, 74(3) — 
Transfer of Case — Statute— Waiveb. 

The right of a party suing in a justice court 
to have the case transferred under Civ. Code 
Prac. i 710, to his own district is waived unless 
exercised by motion before trial in the court to 
which the summons or warrant is returned by 
the officer executing it 

[Ed. Note.— For other cases, see Justices of 
the Peace, Cent Dig. |i 286-242; Dec. Dig. 
<S=>78, 74(3).] 

3. Forcible Entry and Detainer «S=>16(1) 
—Jurisdiction— Police Courts—' 'Justice 
Courts"— "Justices of the Peace." 

Civ. Code Prac. | 464, authorizes the issu- 
ance of a writ of forcible entry and detainer 
and confers the power of issuance upon '"jus- 
tices of the peace," Ky. St. I 3710, defines 
the jurisdiction of police courts in cities of the 
sixth class, as the same as "justice courts." 
Const. { 143, authorizes the Legislature to con- 
fer on police courts the same criminal jurisdic- 
tion "as justices of the peace have," their civil 
jurisdiction not to exceed that "of a justice of 
the peace." Held, that the indiscriminate use 
of the term "justice courts" and "justices of the 
peace" makes it apparent that the terms are 
used synonymously so that such police courts 
have the same jurisdiction as justices of the 
peace to issue and try warrants of forcible entry 
and detainer (citing Words and Phrases, voL 2, 
p. 1675; see, also, Words and Phrases, First 
and Second Series, Justice Courts; Justices of 
the Peace). 

[Ed. Note.— For other cases, see Forcible En- 
try and Detainer, Cent. Dig. §§ 78-81; Dec. 
Dig. <S=>16(1).] 

Appeal from Circuit Court, Martin County. 

Action by Jane Carlisle Allen against John 
0. Moore and others. Judgment for defend- 
ants, and plaintiff appeals. Reversed and 
remanded. 

Vaughan & Howes, of Paintsville, and J. B. 
Clark, of Inez, for appellant Allen Copley, 
of Inez, for appellees. 

CLARKE, J. Appellant procured a writ 
of forcible entry and detainer to be issued 
against appellees by the police judge of 
the town of Eden, In Martin county, Ky, 
Upon a traverse to the circuit court of the 
inquisition in the police court, the court 
quashed the warrant and dismissed the case, 
upon the ground that the police judge was 
without jurisdiction to issue the warrant, 
and that it was therefore void. The only 
question presented upon this appeal is wheth- 
er or not the police judge of a town of the 
sixth class with a population of more than 
250 Inhabitants has jurisdiction to issue a 
warrant for forcible entry and detainer, es- 
pecially if the land Involved lies outside of 
the town. 



[1] It is admitted that justices of the peace 
have jurisdiction, under section 454 of the 
Civil Code of Practice, to issue and try such 
warrant, and it has been held by this court 
that, under section 142 of the Constitution, 
the jurisdiction of a justice of the peace is 
not confined to the district from which, he Is 
elected, but Is coextensive with the county 
(Brady r. Brannon, 134 Ky. 769, 121 S. W. 
679; Galot v. Pearce, 38 S. W. 892, 18 Ky. 
Law Rep. 1004), to be exercised, however, in 
the district from which the justice is elected, 
and subject to the rules of procedure pre- 
scribed by law, one of which is the right of 
the party sued to have the case transferred 
for trial to the district of his residence* 
upon proper motion. Wheeler v. Schulman, 
165 Ky. 185, 176 S. W. 1017. 

Section 143 of the Kentucky Constitution, 
which authorizes the establishment of police 
courts in cities of the sixth class, Is as fol- 
lows: 

"A police court may be established in each city 
and town in this state, with jurisdiction in cases 
of violation of municipal ordinances and by- 
laws occurring within the corporate limits of 
the city or town in which it is established, and 
such criminal jurisdiction within the said limits 
as justices of the peace have. The said courts 
may be authorized to act as examining courts, 
but shall have no civil jurisdiction: Provided, 
the General Assembly may confer civil jurisdic- 
tion on police courts in cities and towns of the 
fourth and fifth classes, and in towns of the sixth 
class having a population of two hundred and 
fifty or more, which jurisdiction shall be uniform 
throughout the state, and not exceed that of jus- 
tices of the peace," 

It will be noticed that the criminal juris- 
diction of such courts is expressly limited 
to matters occurring within the corporate lim- 
its, and, within those limits, such police 
courts have the same criminal jurisdiction as 
justices of the peace; but it will be noticed 
that, when in the same section of the Consti- 
tution the Legislature is authorized to confer 
civil jurisdiction upon such courts, such ju- 
risdiction is not limited to the corporate lim- 
its, but the Legislature Is authorized to 
confer a jurisdiction, to be uniform through- 
out the state, and not to exceed that of jus- 
tices of the peace. Section 3710, Kentucky 
Statutes, which, pursuant to the constitution- 
al authority, defines the jurisdiction of the 
police courts for such towns, limits the crimi- 
nal Jurisdiction, in express terms, to the cor- 
porate limits of the town, but confers a civil 
jurisdiction "concurrent with the justices 
courts In civil actions and proceedings"; so 
that the question before us would seem to 
narrow down to the construction of the 
words "concurrent jurisdiction" In the above 
quotation. 

[2] In Words and Phrases, vol. 2, p. 1391, 
concurrent jurisdiction is defined as follows: 
"Equal jurisdiction "having the same Ju- 
risdiction;" "same Jurisdiction;" "authorized 
to deal with the same subject-matter;" 
"equal power and authority." Accepting any 



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ALLEN v. MOORS 



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ot these definitions, and there Is none giving 
the term a more limited meaning, it is ap- 
parent that the police courts in town of the 
class we are considering, under the above 
statute, are vested with exactly the same Ju- 
risdiction, over the same matters, and with- 
in the same territorial limits as Justices' 
courts. Counsel for appellees does not dis- 
pute this conclusion, except in so far as it 
ascribes to the police courts a jurisdiction 
outside of the corporate limits of the town. 
Since the constitutional and statutory pro- 
visions by which these courts were establish- 
ed expressly limit the criminal jurisdiction 
to the corporate limits, but do not limit the 
dvil jurisdiction, but make It concurrent 
with justices' courts, which as we have here- 
tofore Been, have a dvil jurisdiction coex- 
tensive with the county, it necessarily results 
that the dvil Jurisdiction of these police 
courts is not confined to the corporate limits 
of the town, but covers the entire county, 
but is, like that of the justices' courts, to be 
exercised within the territory from which the 
police judge is elected, and subject to the 
roles of procedure prescribed by law, which 
are the same as for justices' courts, one of 
which, as we have seen, is the right of the 
party sued to have the case transferred, un- 
der section 710 of the Civil Code, to his own 
district, a right which is, however, waived 
unless exercised by motion, before trial, In 
the court to which the summons or warrant 
Is returned by the officer executing it 

[t] Counsel for appellees most earnestly 
Insist that, even though It may be held that 
police courts of the dass we are considering 
have the same dvil Jurisdiction as justices' 
courts, and that such Jurisdiction extends be- 
yond the corporate limits, they still have not 
the authority or power to issue warrants of 
forcible entry and detainer, because the Juris- 
diction to issue and try such warrants is con- 
ferred, not upon the "justices' courts," but 
upon the "justices of the peace" as officers of 
the court, as distinguished from the court 
itself. Section 464 of the Civil Code, author- 
izing the Issuance of a writ of forcible entry 
or detainer, does confer the power of issu- 
ance upon "justices of the peace," whereas 
section 3710 of the statutes, which defines 
.and establishes the jurisdiction of police 
courts in towns of this dass, describes their 
jurisdiction as the same as "justices' courts." 
It is insisted that, in giving the Jurisdiction 
to issue writs of forcible entry and detainer 
to the Justice of the peace rather than to his 
court, and by limiting the dvil Jurisdiction 
of the police court to that of the justice's 
court, the legislative intent is expressed to 
confine the jurisdiction of the police court 
to the Jurisdiction of the justice's court, and 
to exclude the Jurisdiction to issue writs of 



forcible entry and detainer, which had been 
vested in the justice rather than In his court 

We cannot agree that there is a' legislative 
intent expressed to make any such distinction 
because of the fact that in one instance the 
Jurisdiction to try a dvil proceeding is con- 
ferred upon the courts, and In another upon 
the justices. In both instances the power 
conferred is to hear and determine dvil ac- 
tions, a Judicial function, to be performed 
by the court through its judge; but we fail 
to find either an intention to make a dis- 
tinction between a justice and his court, so 
far as jurisdiction Is concerned, or any rea- 
son for such distinction. On the other hand, 
it is apparent that no such distinction was 
intended by the Legislature from the fact 
that the constitutional provision, section 
143, authorizes the Legislature to confer on 
police courts the same criminal jurisdiction 
as "justices of the peace have," and a dvil 
jurisdiction not to exceed that of "Justices of 
the peace," that is, the criminal Jurisdiction 
must be the same as justices of the peace 
have, and the civil jurisdiction must not ex- 
ceed that of Justices of the peace; yet the 
Legislature, in carrying this sedion of the 
Constitution into effect, conferred upon police 
courts the same Jurisdiction, both criminal 
and dvil, as "Justices' courts," rather than 
"Justices of the peace." Instead of show- 
ing a purpose to distinguish, it is apparent 
that the terms were used synonymously, for, 
if the distinction contended for should be 
upheld and pursued, it would result that the 
police courts would be without any criminal 
jurisdiction at all, since no Jurisdiction is 
conferred upon the police judge, and by sec- 
tion 3710, supra, police courts are vested with 
the same criminal jurisdiction as justices' 
courts, and by section 1077a of the Kentucky 
Statutes criminal jurisdiction is lodged, not 
in the "justices' courts," but in the "jus- 
tices of the peace." Any apparent conflict is 
eliminated by assuming that "justices' 
courts" and "Justice of the peace" were used 
as synonymous terms in the constitutional 
and statutory provisions we have under con- 
sideration; and we so hold, and for so doing 
have ample authority, not only in reason, but 
in many judicial constructions given to the 
words "Judge" and "court." See Words and 
Phrases, vol. 2, p. 1675. 

We therefore conclude that police courts in 
towns of the sixth class having a population 
of more than 250 have the same Jurisdiction 
as justices of the peace to issue and try 
warrants of forcible entry and detainer, and 
that the circuit court erred In quashing the 
warrant and dismissing the case. 

Wherefore the judgment is reversed, and 
the cause remanded for proceedings consist- 
ent herewith. 



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191 SOUTHWESTERN REPORTER 



(Ky. 



LOUISVILLE ft N. R. CO. v, COMLBY.* 
(Court of Appeals of Kentucky. Jan. 26, 1917.) 

1. Railroads «=>309— Cbossikg— Cabe Ke- 
quibrd. 

A railroad company, maintaining a grade 
crossing which was extrahazardous to travelers 
because of obstruction of the view, owed to the 
public a duty of exercising extraordinary care 
commensurate with the extraordinary danger. 

[Ed. Note. — For other cases, see Railroads, 
Cent Dig. f 981; Dec. Dig. <S=»309J 

2. Railroads <g=>806(2>— Crossing Accident 
—Signal Beix — Negligence. 

A railroad company is liable for injuries to 
a traveler on the highway from a horse becom- 
ing frightened at the unnecessary back-ringing 
of a signal bell negligently maintained by the 
railroad company at a grade crossing. 

[Ed. Note.— For other cases, see Railroads, 
Cent Dig. §§ 969, 970; DecTbig. «=»305(2yj 

3. Railroads <g=>34G(l) — Grade. Crossing — 
Burden of proof— Negligence. 

Where, in an action for injuries to a traveler 
from a horse becoming frightened at the un- 
necessary back-ringing of a signal bell at a 

Srade 'crossing, it appeared that the bell was a 
evice strange to the public, which slightly un- 
derstood its mechanical construction and was 
under the exclusive control of the defendant 
and the injury and circumstances under which 
it occurred were shown by plaintiff, the burden 
shifted to defendant to establish its freedom 
from fault 

[Ed. Note.— For other cases, see Railroads, 
Cent Dig. | 1117; Dec. Dig. <B=»346(1)J 

4. Railroads <$=>350(4)— Grade Crossings— 
Evidence— Case fob Jury. 

The prima facie case made out by plaintiff 
by introducing proof of such injury and the 
surrounding circumstances was rebuttable; but 
the case was for the jury, though defendant in- 
troduced evidence that the bell was properly in- 
stalled and kept in good working order. 

[Ed. Note.— For other cases, see Railroads. 
Cent. Dig. § 1165; Dec. Dig. «=>350(4).] 

6. Damages <8=> 132(6)— Personal Injuries— 

Excessive Recovery. 
A recovery of $2,500 for a broken hip, re- 
sulting in permanently crippling a woman 60 
years of age and in previous good health, was 
not excessive. 

[Ed. Note.— For other cases, see Damages, 
Cent Dig. § 377; Dec. Dig. «J=»132(6).] 

Appeal from Circuit Court, Franklin 
County. 

Action by Kitty Comley against the Louis- 
ville & Nashville Railroad Company. From 
a Judgment for plaintiff, defendant appeals. 
Affirmed. 

Guy H. BrJggs, of Frankfort, and Benjamin 
D. Warfleld, of Louisville, for appellant 
O'Rear ft Williams, of Frankfort, for appel- 
lee. 

SAMPSON, J. Alleging that she received 
a serious Injury to her person due to the 
back-ringing of a signal bell maintained by 
appellant at a grade crossing, the appellee, 
Mrs. Kitty Comley, Instituted this action in 
the Franklin circuit court to recover damages. 
The injury of which she complains happened 
In May, 1913, at a point on the Glenn Creek 
pike -where the defendant railroad company's 



track crosses the same, at grade, about one 
mile east of the city of Frankfort At this 
point an admittedly dangerous crossing, the 
railroad company had theretofore erected 
and was maintaining an electric signal bell, 
which was Intended to and did, on the ap- 
proach of trains from either side of the cross- 
ing, ring so as to warn travelers on the high- 
way of the coming train. The bell is about 
9 or 10 inches In diameter, and can be heard 
about 600 yards. The ringing would begin 
when a train, approaching the crossing from 
either side, reached a point about 2,000 feet 
distant therefrom. On either side of the 
crossing the track curves, and passes through 
a cut which is of such depth as to obstruct 
the view and prevent a traveler on the pike 
from seeing the oncoming train, as well as to 
obstruct the view of the englnemen In charge 
of the trains. To warn the traveling public, 
and thus avoid injury, the railroad company 
Installed the electric signal bell, complained 
of In the petition. 

The plaintiff, Mrs. Comley, and two neigh- 
bors, were driving on the pike In an open top 
buggy, towards Frankfort The vehicle was 
drawn by a single horse, which Mrs. Comley 
had often driven on the same road, and which 
she alleges was reasonably safe, gentle, and 
a well -broken animal. As they approached 
the crossing in question, the electric signal 
bell was ringing, indicating the approach of 
a train to the said crossing, and in fact said 
train was making such noise as to warn her 
that It was coming. To avoid Injury she 
caused the horse to be stopped about SO feet 
before It reached the track, and there remain 
until the train passed, and the signal bell 
ceased to ring. Thereupon she directed the 
young man in the buggy to drive on, which 
he did. The signal bell was located on a post 
8 or 10 feet high, situated near the edge of 
the highway, and on the right of way of the 
railroad company. When the buggy had 
crossed the track, and the head of the horse 
was opposite and near the post on and to 
which the signal bell was attached, the bell 
without warning to plaintiff again suddenly 
commenced to ring, which ringing frightened 
the horse, causing It to shy and whirl around, 
throwing or causing Mrs. Comley to fall from 
the buggy to the ground, and breaking her 
leg near her hip. This last ringing of the 
bell la called in the record "back-ringing," 
and this resulted from a defective condition 
of the mechanism operating the bell. At 
this time she was a woman about 60 years of 
age, but In good health and of reasonable 
strength. From this Injury she had not, at 
the time of the trial In the lower court In 
September, 1915, fully recovered, but was 
obliged to go about on crutches. 

The question is: Can the plaintiff recover 
for an Injury occasioned her by unnecessary 
back-ringing of a defective signal bell at a 
railroad crossing, frightening her horse and 



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Kji LOUISVILLE A N. 

causing her to be thrown from the buggy to 
the ground. This question appears to be res 
Integra in this jurisdiction. The defendant 
company, prosecuting this appeal to reverse 
the judgment, relies upon the following five 
grounds: First The plaintiffs petition does 
not support the verdict and judgment. Sec- 
ond. It was defendant's legal duty to have 
the electric bell at the crossing, and it Is not, 
therefore, liable for the Injury. Third. 
There is no evidence that the defendant fail- 
ed to exercise ordinary care in the construc- 
tion and maintenance of the bell; therefore 
the court should have told the jury, as a 
matter of law, that plaintiff was not entitled 
to recover. Fourth. The damages arc exces- 
sive. Fifth. The) court gave the jury er- 
roneous Instructions of plaintiff's motion. 
These will be considered in the order named. 

The plaintiff in her petition, omitting the 
formal parts, alleges that this highway was 
much frequented by people going to and re- 
turning from the city of Frankfort and else- 
where, and "the plaintiff says that at the In- 
tersection of the said pike and railroad cross- 
ing this defendant negligently placed, con- 
structed, managed, and operated an electric 
alarm or signal bell, which was originally so 
Improperly and faultily constructed, or was 
suffered and permitted to be and remain out 
of repair, plaintiff does not know which, as 
that same would ring loudly, and make un- 
usual and startling noises, such as would 
and did frighten horses of ordinary gentle- 
ness." Continuing, plaintiff in substance al- 
leges that the horse was of ordinary gentle- 
ness; that the bell suddenly and unneces- 
sarily, when no train was approaching, be- 
gan to ring loudly and make frightening 
noises, and did frighten her horse, and cause 
It to suddenly turn the buggy and throw the 
plaintiff to the ground, and cripple her, from 
which she has suffered and will suffer great 
pain. The defendant company is charged 
with negligence In the installation, mainte- 
nance, and control of the signal bell, with 
having at the said crossing a defective signal 
bell, that unnecessarily back-rung, giving off 
loud noises, at an unexpected moment, and 
when to do so was reasonably calculated to 
frighten a horse of ordinary gentleness, at a 
time when the plaintiff was driving along 
the highway, as she had a right to do, 
which noise caused her horse to suddenly 
turn the buggy, with the resulting Injury. 
When the train passed the plaintiff had the 
right to presume that the way was clear 
and to proceed on her way. The bell had 
ceased to ring. The crossing was clear and 
apparently safe. She was guilty of no wrong 
or violation of duty In attempting to pro- 
ceed. She could not foresee the back-ringing 
of the bell, or know of the defective condition 
of the device. Undoubtedly the allegations 
of the petition are sufficient to support the 
Judgment 

II, J] It was the right of the defendant 
191 S.W.-7 



R, CO. t. OOMLEY $7 

company to have and maintain the signal 
bell at the crossing, but It was not required 
to do so. It might have placed there a 
flagman or gate to warn the public of ap- 
proaching trains, but Instead It chose to rely 
upon the signal bell. If the crossing was ex- 
tra hazardous, as appears here to be the case, 
it was incumbent upon the defendant com- 
pany to exercise extra care, care commensu- 
rate with the extra danger, and likewise was 
it the duty of the plaintiff, and others us- 
ing the said crossing, to exercise care In 
keeping with the added danger. While the 
defendant company had the right to maintain 
the signal bell, it was its duty to do so in 
a manner not calculated to bring injury to a 
member of the public, having the right to and 
using the highway. The bell was exclusive- 
ly under its control and management. The 
defendant having created at that crossing 
extraordinary danger, was required to ex- 
ercise extraordinary care. C. & O. E. R. 
Co. v. Ounter, 108 Ky. 362, 66 S. W. 527, 21 
Ky. Law Rep. 1803. 

There Is some contrariety of evidence as to 
what care the defendant company employed 
to have the signal bell in condition to per- 
form its functions, and defendant company 
asserts that there is no evidence for the 
plaintiff that the bell was not properly in- 
stalled or maintained. The wrong complain- 
ed of is the back-ringing of the bell. The 
bell did not back-ring except when out of 
order. Defendant says, however, that It can- 
not be held liable because by the exercise 
of ordinary care It did not and could not 
have discovered the defect In the bell In time 
to have saved the accident. Evidence was 
introduced on this point and was passed up- 
on' by the Jury. 

[S] It must be conceded, however, that this 
bell Is to the public a strange device, but 
slightly understood in Its mechanical con- 
struction, and exclusively under the manage- 
ment and control of the company. In such cas- 
es, It has been repeatedly held that where the 
accident, injury, and the circumstances under 
which they occur are shown by the plaintiff, 
and whether the injury resulted from negli- 
gence, is peculiarly within the knowledge of 
the defendant company, the burden shifts up- 
on It to establish its freedom from fault 
This doctrine has often been applied by the 
courts, not only in this state, but generally 
throughout the several states. This signal 
bell rang at an Inopportune and unnecessary 
time, through some fault In the bell or its 
mechanism, and its ringing was the proxi- 
mate cause of the injury. The bell was out 
of order; of this there is no doubt It un- 
necessarily back-rung; this resulted from a 
defect in the bell or its attachments; it 
was not Intended so to do, and did not, in 
the usual and ordinary course, under proper 
care, management and, inspection. Plain- 
tiff was not in fault but was exercising due 
care. If defendant company, instead of the 



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98 



191 SOUTHWESTERN REPORTER 



bell, had placed a flagman at the crossing, 
and as plaintiff drove across the tracks the 
flagman had suddenly, unexpectedly and un- 
necessarily thrown his signal flag in the face 
of the horse, frightening it, and injury had 
resulted, would it be contended that defend- 
ant was not liable? 

Defendant, however, insists that the plain- 
tiff had the burden of proof, and did not sus- 
tain it by evidence, and did not show negli- 
gence on the part of the company, and negli- 
gence cannot be presumed. Ordinarily neg- 
ligence cannot be presumed; but, as above 
stated, in cases of this character, when the 
accident, Injury, and surrounding circum- 
stances are shown, it rests with the defend- 
ant to make the explanation, If it so desires, 
and to show It exercised due care. "Res ipsa 
loquitur." The thing speaks for Itself. The 
bell was wholly and completely under the 
control and management of the defendant 
company, and whether the bell and its attach- 
ments were, or not, properly Inspected and 
kept In order, was peculiarly within the 
knowledge of the defendant company and its 
servants, and not in plaintiff, and when 
plaintiff produced evidence of the accident, 
injury, and surrounding circumstances, the 
burden was cast upon the defendant company 
to show It is not guilty of the negligence 
charged. 

Proof of an injury occurring as the proxi- 
mate result of an act of the defendant, which 
could not usually, If done with due care, 
have injured any one, is enough to make out 
a presumption of negligence. When a thing 
which causes an injury is shown to be under 
the management of the defendant, and the 
accident is such as in the ordinary course of 
things does not happen, if those who have the 
management use proper care, It affords rea- 
sonable evidence, in the absence of explana- 
tion of the defendant, that the accident arose 
from a want of care. Shearman & Red field 
on Negligence, f 59 ; Paducah Traction Go. v. 
Baker, 130 Ky. 360, 113 S. W. 449, IS U & 
A. (N. S.) 1185; Shlnn Olove Co. v. Sanders, 
147 Ky. 349, 144 S. W. 11; Louisville Light- 
ing Co. v. Owens, 105 S. W. 435, 32 Ky. Law 
Rep. 283; Louisville & Nashville R K. Co. v. 
Mink, 168 Ky. 394, 182 S. W. 188; Orlffen v. 
Manlce, 166 N. Y. 188, 59 N. B. 925, 62 L. R. 
A. 922, 82 Am. St Rep. 630. 

[4] The defendant company had the right 
to show, and did in fact undertake to show, 
by the evidence, that the bell was properly 
installed, and was thereafter kept In good 
working order; and this was one of the is- 
sues submitted to the jury on the evidence. 
The Jury beard all of this, and In Its province 
as judge of the facts found against the de- 
fendant, as It might well have done under 
the evidence. The prima fade case made by 
the plaintiff, like any other such case, may 
be overcome by the proof from defendant. 
The jury Is not constrained to find in favor 
of the prima facie case. That depends upon 



the Inference drawn from die weight of the 

evidence. 

[6] The plaintiff, Mrs. Comley, suffered a 
very severe injury. At her age and time of 
life a broken hip Is Indeed a calamity. Ac- 
cording to the evidence bad on the trial, she 
is compelled to walk on crutches. In view 
of these facts, we do not think the verdict of 
$2,500 is excessive, or that it could be said 
that the verdict appears to have been ren- 
dered under the Influence of passion or prej- 
udice. 

The Instructions given by the lower court 
fairly present the law of the case, and we 
perceive no prejudicial error to the defendant 
therein. The court gave all Instructions of- 
fered by defendant's counsel, and that fully 
presented its side of the case. 

Judgment affirmed. 



BTHINGTON et aL v. RIGO. 
(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. Vendor and Purchaser (S=s 133 — Cove- 
nant to Execute General Warranty 
Deed. 

Covenant, in a contract for the sale of land, 
to execute to the buyer a general warranty deed, 
is not complied with unless the tendered title is 
a perfectly legal one, and one which would be 
accepted as marketable, so that, if, at the time 
for performance of an executory contract for the 
sale of land, the title which the vendor exhibits 
is one incumbered of record with a lien, his cove- 
nant to convey by general warranty is broken, 
and the vendee is not compelled to accept his 
deed, although containing a covenant of general 
warranty. 

[Ed. Note.— For other cases, see Vendor and 
Purchaser, Cent Dig. §§ 234-237; Dec. Dig. 
<S=133.] 

2. Bills and Notes <6=»427(1) — Right or 
Joint Obligee to Collect. 

Any joint obligee has a right to collect a 
note executed to himself and others, and his re- 
ceipt of the obligation is binding on the other 
obligees, and constitutes a complete acquittance 
of the payer. 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. ft 1233-1238, 1243, 1244; 
Dec. Dig. <8=>427(1).J 

3. Vendor and Purchaser ®=>182 — Defer- 
red Payments— To Whom Notes Payable. 

When a deed provides for the execution of 
notes for deferred payments without specifying 
the person or persons to whom they shall be 
executed, it will be presumed that they are to 
be executed jointly to the vendors in the deed. 

[Ed. Note. — For other cases, see Vendor and 
Purchaser, Cent Dig. § 852; Dec. Dig. «=> 
182.] 

4. Principal and Agent «=>22(1) — Estab- 
lishment or Agency by Declarations or 

Agent. 

The fact of agency may not be established by 
the statements alone of the supposed agent 

[Ed. Note. — For other cases, see Principal and 
Agent, Cent Dig. { 40; Dec. Dig. «=»22(1).] 

5. Vendor and Purchaser *=»132— Duty to 
Accept Title — Release or Lien— Stat- 
utes. 

Under Ky. St { 498, and section 498a, sub- 
sec. 3, relative to the discharge or release of 
liens by deed or mortgage on the margin of the 



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Ky.) 

record, signed by the person entitled, or his per- 
sonal representative, where, in the chain of ti- 
tle of .the contracted vendors of land, there was 
a deed to one of their grantors executed by 
numerous parties of different names, and, on the 
margin of the record, there was a release of the 
lien retained for payment of the two notes of the 
purchase money signed by "I. H. Reddish, 
Agent Rigg Heirs," the record did not show 
such a valid release of the lien as to present a 
clear and perfect title in the vendors which the 
law would compel the vendee to accept. 

[Ed. Note.— For other cases, see Vendor and 
Purchaser, Cent. Dig. | 248; Dec Dig. «=>132J 

<L Vendor and Purchases <8=>324— Right or 
Vendee — Developments After Time or 
Performance. 
In an action by the vendors of realty to re- 
cover damages for failure to perform the execu- 
tory contract to buy the land, the rights of de- 
fendant vendee are not to be affected by any- 
thing affecting the vendors' title developing or 
occurring after the time stipulated for perform- 
ance of the contract. 

[Ed. Note.— For other cases, see Vendor and 
Purchaser, Cent. Dig. M 944-947; Dec. Dig. 
*=>324.] 

7. Vendor and Purchaser «=>129(1)— Dtjtt 
to Accept Title. 

The law will not force a contracted buyer 
of realty to accept at the hands of the seller a 
title which may subject him to expensive, annoy- 
ing, and perhaps protracted litigation, with the 
possibility of having to pay lien notes. 

[Ed. Note.— For other cases, see Vendor and 
Purchaser, Cent. Dig. ff 238, 239, 243, 249; 
Dec Dig. «=»129(1).] 

8. Appeal and Error <8=>1070(1) — Verdict 
Which Jury Should Have Been Instruct- 
ed to Return. 

Where the verdict is one which under the 
evidence the jury should have been instructed to 
return, the judgment rendered upon it will be af- 
firmed, though the verdict was not returned un- 
der the directions of the court. 

[Ed. Note.— For other cases, see Appeal and 
Error. Cent Dig. f{ 4231, 4233; Dec. Dig. <8=» 
1070(1).] 

Appeal from Circuit Court, Shelby County. 

Suit by Ida M. Ethlngtou and others 
against D. C. Rigg. From a judgment for 
defendant, plaintiffs appeal. Judgment af- 
firmed. 

Beard & Rives and W. T. Beckham, all of 
Shelbyville, for appellants. Beard & Pickett, 
of Shelbyville, for appellee. 

THOMAS, J. This suit brought by ap- 
pellants (plaintiffs below) against the appel- 
lee (defendant below) to recover of him dam- 
ages in the sum of $1,795.77, less a credit of 
$200 which will be hereinafter explained, 
grows out of the following facts: On No- 
vember 20, 1913, plaintiff Ida M. Ethlngton, 
wife of her coplalntiff, A. L. Ethlngton, was 
the owner of a tract of land in Shelby coun- 
ty containing about 163 acres. On that day 
the plaintiffs entered into a written contract 
with the defendant, D. O. Rigg, to sell their 
farm to him at the price of $44 per acre, one- 
half of which was to be paid in casta at the 
date agreed upon for the execution of the 
deed, which was on or before March 1, 1914, 
"at which time first parties (Ethlngtons) bind 



99 

themselves to make second party (Rigg) a 
general warranty deed to said land." The 
other one-half was to be divided Into four 
equal annual payments evidenced by notes 
bearing that date and drawing 6 per cent 
Interest from date. There were other stipu- 
lations having no, bearing upon the questions 
presented. The land had been purchased by 
Mrs. Ethlngton from William Crafton and 
wife under a deed dated March 1, 1909. 134 
acres of it were purchased by Crafton under 
a deed of date September 2, 1899, which deed 
was executed by W. B. Rigg and wife, Mary 

A. Rigg, Stephen Shelburn and wife, Mary 
T. Shelburn, William Russell and wife, Eliz- 
abeth Russell, T. J. Stodghill and wife, 
Luchy A. Stodghdll, R. T. Rigg and wife, 
Amanda Rigg, J. C Rigg and wife, Matilda 
Rigg, James M. Johnson and S. T. Johnson, 
J. G. Johnson and Lena Johnson, and Mary 

B. Cosby, J. W. Cosby, her husband, E. O. 
Burnett, I. H. Reddish and wife, Mattle Red- 
dish, and Henry Martin, guardian of Mary 
J. Rigg, as vendors. In that deed Crafton 
paid $617.06 cash, and executed his two notes 
for $531.72 each; one of them maturing on 
the 4th day of February, 1900, and the other 
on the 4th day of February, 1901. There is 
nothing appearing In the face of the deed or 
appearing upon the records of the Shelby 
county court showing the person or persons to 
whom such notes were executed. The only 
statement made in the deed with reference 
thereto is: 

"Notes for the deferred payments having been 
executed and bearing six per cent interest per 
annum from the 4 day of February, 1899, until 
paid." 

Further along in the deed a lien Is retain- 
ed upon the land described and conveyed 
to secure both of the purchase-money notes. 
On the margin of the record of this deed to 
Crafton in the county court clerk's office ap- 
pears what purports to be a release of the 
lien retained for the payment of the two 
notes mentioned, which Is in these words: 

"The purchase money having been paid in full, 
I hereby release the ben retained herein. This 
Oct 30, 1900. L H. Reddish, Agent Rigg 
Heirs." 

This entry Is attested by the county court 
clerk. 

On February 28, 1914, Mr. Ethlngton, rep- 
resenting both himself and wife, presented , 
to the defendant a prepared but unexecuted 
warranty deed for the land, which was ob- 
jected to by the defendant upon the ground 
that the records of the Shelby county court 
did not show a clear, unincumbered title, or 
a marketable one, because the entry above 
quoted, signed by I. H. Reddish as agent for 
the Rigg heirs, did not show a valid release 
of the lien retained in the Crafton deed. 
Some few days thereafter plaintiffs tendered 
to the defendant a duly executed deed which, 
for the same reason, he declined to accept, 
and this suit followed. 



ETHINGTON RIGG 



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ioo 

The answer relied upon the facte consti- 
tuting the defendant's reason for declining 
to accept the deed as a defense, and In a sec- 
ond paragraph, which was made a counter- 
claim, he sought to recover $200 from the 
plaintiffs which he had paid them at the time 
of entering Into the written contract for the 
purchase of the land. The case was tried by 
a jury, and under the instructions of the 
court It returned a verdict for $200 in favor 
of the defendant, upon which Judgment was 
rendered, followed by this appeal prosecuted 
by the plaintiffs. 

Section 498 of the Kentucky Statutes pro- 
rides: 

"Liens, by deed or mortgage, may be discharg- 
ed by an entry acknowledging satisfaction of the 
same on the margin of the record thereof, signed 
by the person entitled to the same, or his person- 
al representative, and attested by the clerk or 
his deputy, which, in the case of a mortgage or 
deed of trust, shall have the effect to reinvest the 
title in the mortgagor or grantor, or person en- 
titled thereto." 

Section 498a sets out how the assignment 
of any lien note may be manifested of rec- 
ord, and subsection 3 thereof is: 

"No person, except such as shall, from such 
record or assignment of record, appear at the 
time to be the legal holder of any note or notes 
secured by lien in any deed or mortgage, shall 
be permitted to release the lien securing any 
such note or notes, and any release made in con- 
travention of this section shall be void j but this 
act shall not be held to change the existing law 
if no such entry be made." 

Under these provisions, It Is plain that no 
one can execute a legal release of a lien re- 
tained in a deed except "the person entitled 
to the same, or his personal representative," 
and such person is the one who appears "at 
the time to be the legal holder" of any note 
or notes secured by a deed or mortgage. Any 
attempted release by a person other than the 
one so appearing to be the owner Is void 
under the provisions of subsection 3 of sec- 
tion 498a quoted above. 

[1] The question, then, In this case, is: 
Did I. H. Reddish, as agent for Rlgg heirs, 
possess any recorded authority to execute the 
release which be did? Upon the answer to 
this question depends the determination of 
this suit ; for if he possessed such authority 
it was the duty of the defendant to have ac- 
, cepted the deed which plaintiffs tendered him 
and to have complied with the written con- 
tract to purchase the land by paying the 
cash payment and executing notes for the de- 
ferred payments as therein provided, but, if 
Reddish had no such authority as such alleg- 
ed agent to execute the release which be at- 
tempted to do, the plaintiffs failed to comply 
with their contract by the execution of the 
deed which they tendered. In the contract 
for the sale of the land the plaintiffs agreed 
to execute to the defendant a general war- 
ranty deed to same, and this covenant is not 
compiled with unless the tendered title is a 
perfectly legal one, and one which would be 
accepted as marketable. Bodley, eta, v. 



(Ky. 

McChord, 4 J. J. Marsh. 475 ; Davis v. Dycus, 
7 Bush, 4; Whitworth v. Pool, 96 S. W. 880, 
29 Ky. Law Rep. 1104. In the Davis Case, 
upon this point it is said: 

"There is no difficulty, we conceive, In constru- 
ing the covenant of the appellee to make the ap- 
pellant's general warranty of tide. Any general 
covenant to convey title, if not restricted or 
qualified in its terms by any other stipulation, 
implies that the covenantor can convey a perfect 
legal title, regularly derived from the common- 
wealth ; and if he should be unable to convey 
such title his covenant will be broken." 

We apprehend that no authority can be 
found holding to the contrary. The very 
purpose of such a covenant in a deed Is to 
guarantee against, not only an outstanding 
and superior title, but also against any in- 
cumbrance upon the title held by the ven- 
dor. So, If at the time for the performance) 
of an executory contract for the sale of 
land the title which the vendor exhibits is 
one incumbered of record with a lien, his 
covenant to convey by general warranty Is 
broken, and the vendee is not compelled to 
accept the vendor's deed, although It may 
contain a covenant of general warranty. Bell 
v. Vance, Litt. SeL Cas. 108, on page 110; 
36 Cyc. 638. 

[2] Going now to the question as to the 
authority of. Reddish to release the lien 
which he attempted to do as agent for Rlgg 
heirs, we find nothing in that deed showing 
that he either individually or as such pre- 
tended agent had any interest in the notes 
executed for the deferred payments therein 
mentioned. It might be said, however, that 
any Joint obligee would have a right to col- 
lect a note executed to himself and others, 
and that his receipt of the obligation would 
be binding upon the other obligees and would 
constitute a complete acquittance of the 
payor. 

[3] We have no fault to find with this prin- 
ciple of law, nor have we any quarrel with 
another principle Insisted upon by counsel for 
appellants, which is that, when a deed pro- 
vides for the execution of notes for deferred 
payments without specifying the person or 
persons to whom they were executed, it will 
be presumed that they were executed joint- 
ly to the vendors in the deed. But the ad- 
mission of these two principles of law does 
not help plaintiffs under the facts of this 
case. It Is true that I. H. Reddish In his 
individual capacity is one of the vendors who 
executed the Craft on deed, the retained liens 
in which he attempted to release in the man- 
ner stated. However, he did not do this 
in his individual capacity, but only as "agent 
for Rigg heirs." There Is nothing of record 
to show the fact of his agency, unless It be 
his statement appearing upon the record to 
that effect. 

[4, S] But it is a rale of universal applica- 
tion, and which has been recognized by this 
court in an unbroken line of decisions, that 
the fact of agency may not be established 
by the statements alone of the supposed 
agent Waiving this point, however, and for 



191 SOUTHWESTERN REPORTER 



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ETHINGTON v. RIGG 



101 



the purposes of argument conceding that his 
agency might be so established, the question 
then recurs as to which Bigg heirs he was 
agent of, 1. e., whether he was the agent 
of all the vendors In that deed who may 
have been heirs of some Rlgg ancestor, or 
whether he was agent for the heirs of some 
one or more of the six Riggs appearing as 
vendors In that deed. Clearly, there is noth- 
ing apparent from the record furnishing an 
answer to these Inquiries. For aught tha£ 
appears, Reddish may have collected his part 
of the deferred purchase money without hav- 
ing executed any release, and the same might 
be true as to each of the other vendors, ex- 
cept the heirs of one for whom he may pos- 
sibly have been acting as agent, and whose 
interest he attempted to release by the writ- 
ing which he signed on the margin of the 
county court record. On the other hand, he 
may have been agent for the heirs of some 
one or more of the Rlggs who executed the 
deed and have collected their portions and 
executed the release In question while the 
Interest of all the other vendors may yet 
have been uncollected. Manifestly, these con? 
dltlons leave the record of the title In great 
uncertainty and do not present a clear and 
perfect title which the law would compel 
the defendant to accept. 

[•] If It should be Insisted that the proof 
upon the trial of this case was to the effect 
that the lien notes in the Grafton deed had 
been actually paid, and that the defendant 
therefore could not rely upon the shown con- 
dition of the record as a defense herein, it 
is sufficient to say that the law is that the 
rights of a vendee in a suit of this char- 
acter (being one by a vendor to recover dam- 
ages for the failure to perform an executory 
contract for the sale of land) are ndt to be 
affected by anything which may develop 
or occur after the time for the performance 
of his contract He has a right to rely up- 
on the conditions as they appear of record at 
that time, and no perfecting of the title 
afterwards by the vendor will be permitted 
to relate back to the time for performance 
so as to deprive the vendee of his right of 
refusal to accept the title tendered by the 
vendor. In other words, the vendor cannot 
clear up or perfect his title after the time 
for the performance so as to perfect his 
right to sue the vendee to recover damages 
for a breach committed by his refusal to 
accept the tendered title when It appeared of 
record to be imperfect. Upholding this rule, 
It is said in 39 Gyc. 1925: 

"Thus the purchaser may show, by way of de- 
fense, that there exists a superior outstanding 
title, that the vendor was unable to convey a 
good title at the proper time therefor." 

And again, on page 1983 of the same vol- 
ume, it is said: 

"A vendor, In order to recover for a breach of 
contract by the purchaser, must himself have 
been able and ready to perform his part of the 
contract, • • • and if time is of the essence 
of the contract he must have been able to per- 
form promptly at the time stipulated." 



This text is fortified by a long list of au- 
thorities, and Is in perfect accord, not only 
with the general principles of law governing 
contracts, but also that especially applicable 
to sales of real estate. The rule is upheld by 
this court in the case of Smith v. Cansler, 

88 Ky. 367. There is nothing In the cases of 
Logan v. Bull, .78 Ky. 607, Tapp y. Nock, 

89 Ky. 414, 12 S. W. 713, or Cotton v. Ward. 
3 T. B. Mod. 313, in conflict therewith. On 
the contrary, those cases recognize the rule 
as applicable when ' time Is of the essence 
of the contract, and as we have seen from 
Cyc, and as upheld In the Smith Case, supra, 
time is of the essence of the contract under 
the facts presented in this case. 

It is true that, under some circumstances, 
In the cases from this court just referred to 
In suits for a rescission or specific perform- 
ance of the executory contract the plaintiff 
would be permitted to perfect his title even 
after suit and before decree; but, inasmuch 
as this is a suit for damages for breach of 
performance and not one of either of the 
classes mentioned, such right to supply the 
defects in the plaintiff's title after the time 
for performance has expired is not allowed. 
Bearing upon this feature of the distinction 
between the remedies at law and in equity, 
under circumstances similar to those we have 
here, it is said in 86 Cyc. 707: 

"At law, time is always of the essence of the 
contract. Where any time is fixed for the com- 
pletion of it, the contract must be completed on 
the day specified. But courts of equity make a 
distinction in all cases between that which is 
matter of substance and that which is matter of 
form. The principle has been firmly established 
from an early day in all ordinary contracts for 
the sale and purchase of land that time is not, 
in equity, of the essence of the contract; that 
is to say, acts which plaintiff, by the terms of 
the contract, stipulated to perform on a given 
date, may be performed at a later date." 

[1 , 8] If, however, the principle Just dis- 
cussed had no existence In the law, and the 
plaintiffs in this suit at law bad the right at 
any time before Judgment to perfect their 
title so as to render the defendant liable in 
damages for his refusal to accept perform- 
ance offered by plaintiffs, the proof upon the 
trial of this case fails to establish their 
right to recover. It is shown by the witness 
Grafton that he paid the purchase notes 
mentioned in his deed, but this would not be 
binding on the ones to whom he owed the 
money, for clearly they would have a right 
at any time before their cause of action be- 
came barred to enforce their lien against 
the land, and the Judgment in this case could 
not affect In the least their right to do so, 
or be binding on them. The defendant then, 
in that Instance, would be subjected to ex- 
pensive, annoying, and perhaps protracted 
litigation with the possibility of having to 
pay the lien notes, and the law will not force 
him to accept a title fraught with such pos- 
sibilities. So that, in any view of the case, 
we are clearly of the opinion that the plain- 
tiffs failed to sustain their cause of action, 



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102 



191 SOUTHWESTERN REPORTER 



(Ky. 



and that the jury should have been Instructed 
to return the verdict which It did return un- 
der Instructions of the court, to which the 
defendant objected. 36 Cyc. 638. When the 
verdict is one which under the evidence the 
Jury should have been instructed to return, 
the judgment rendered upon it will be af- 
firmed, although the verdict was not return- 
ed under the directions of the court Emler 
v. Fox, 172 Ky. 291, 189 8. W. 469. 
Wherefore the judgment Is affirmed. 



LOUISVILLE & N. R. CO. v. MUDD'S 
ADM'X. 

(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. Cabbie as «=»281— Dutt to Intoxicated 
Passenger. 

That a passenger is drinking or under the 
influence of liquor is not enough to require the 
trainmen to give him any more care than other 
passengers, and it is only where a passenger 
is so much under the influence of liquor as to be 
helpless or irresponsible, or incapable of protect- 
ing himself from accident, and his condition is, 
or in the exercise of ordinary care could be, 
known to them, that they are under a duty to 
give him any extra care. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. §f 1093-1007, 1241; Dec Dig. «=» 
281.] 

2. Carriers <8=>317(2) — Personal Injury — 

Evidence. 

In an action for the death of plaintiffs in- 
testate, on the ground that while a passenger 
he was so intoxicated as to be helpless and in- 
capable of taking care of himself, and that his 
condition was known to, or in the exercise of 
ordinary care should have been known to, de- 
fendant s trainmen, and that they negligently 
permitted him to fall or jump from the car as 
it was approaching his station, evidence as to 
his condition as to sobriety three or four hours 
before he boarded the train for a ride of about 
2% hours was too remote to be of any probative 
force. 

[Ed. Note.— For other cases, see Carriers. 
Cent. Dig. § 1295; Dec. Dig. <8=>317(2).] 

3. Carriers <§=»317(l) — Personal Injury- 
Evidence— Intoxication. 

In such action, evidence that decedent was 
in a helpless condition from intoxication, and as 
to the extent of his intoxication within a rea- 
sonable time before and after he was on the 
train as a passenger was competent, though not 
of the same probative value as evidence of his 
condition while he was on the train. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. § 1295; Dec. Dig. «=»317(1).] 

4. Carriers <g=»320(3) — Personal Injury — 
Intoxication— Question for Jury. 

In such action, held on the evidence as to 
whether decedent while on the train was so 
intoxicated as to be helpless or incapable of tak- 
ing care of himself, and as to whether his con- 
dition was such that it was known, or in the 
exercise of ordinary care should have been 
known, to the trainmen, that defendant was en- 
titled to a directed verdict. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. §§ 1232, 1315; Dec. Dig. «=»320(3).j 

Appeal from Circuit Court, Marlon County. 

Action by Lloyd D. Mudd's administratrix 
against the Louisville & Nashville Railroad 
Company. Judgment for plaintiff, and de- 



fendant appeals. Reversed, and cause re- 
manded. 

W. C. McChord, of Springfield, P. K. Mc- 
Elroy, of Lebanon, and B. D. Warfleld, of 
Louisville, for appellant, S. A. Russell and 
H. S. McElroy, both of Lebanon, for appellee. 

CLARKE, J. This is an appeal from a 
judgment of the Marlon circuit court grant- 
ing the administratrix of Lloyd D. Mudd 
$7,000 damages for his death, which occurred 
May 11, 1916, as the result of injuries re- 
ceived by him on October 6, 1914, from fall- 
ing or stepping off of one of appellant's pas- 
senger trains, as It approached Loretto Sta- 
tion. The decedent was a passenger on said 
train, going from Louisville to Loretto, Ky. 
The train was due to leave Louisville at 5:15 
p. m., and to arrive at Loretto at 7:42 the 
same evening, so that decedent was on the 
train about two hours and one-half. As the 
train was approaching Loretto, and after the 
flagman had anounced in the car In which 
Mudd was riding, "Loretto," or "Loretto Is 
the next stop," some of the witnesses giving 
It one way and some another, decedent got 
up from his seat, walked out of the car upon 
the platform, and either fell from the car or 
jumped off, while the train was going 30 or 
35 miles an hour. The evidence does not 
show that the conductor, flagman, or any 
train official saw decedent leave his seat, go 
to the platform, or fall or get off of the train, 
or that they knew of his action, until Inform- 
ed by one of the passengers that he had ei- 
ther fallen or jumped off the train. 

Appellee's petition states that at the time 
of the accident and all the time decedent was 
upon appellant's passenger train he was, from 
the use of intoxicating liquors, in a helpless 
condition and Incapable of taking care of 
himself, or of discerning, apprehending, and 
preventing danger and injury to himself, and 
that his condition was known, or could, by 
the exercise of ordinary care, have been 
known by appellant's employes and agents in 
charge of the train, and that they negligently 
permitted him, while in that condition, to 
leave the car on the train and fall therefrom, 
thereby producing the injuries which resulted 
In his death. 

[1] Insisting that the evidence failed to 
show that decedent was intoxicated to such a 
degree as to impose upon its servants the ob- 
ligation of exercising extra care and precau- 
tion for his safety, appellant, at the close of 
appellee's testimony, and again at the com- 
pletion of all the evidence, entered a motion 
for a directed verdict in its favor, and the 
refusal of the court to sustain this motion is 
relied upon here as the chief ground for re- 
versal. Both sides rely upon the case of L., 
H. & St. L. Ry. Co. v. Gregory's Adm'r, 141 
Ky. 747, 133 S. W. 805. In that case this 
court considered the duty of a carrier to an 
intoxicated passenger, and, after an exhaus- 



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LOUISVILLE A N. R. 00. t. MUDD'S ADM'X 



103 



tive review of the authorities therein cited, 
concluded as follows: 

"It is the duty of the train employes to look 
after the safety and comfort of all the passen- 
gers, and they are not required to extend to one 
more protection or care than another, except 
under special circumstances. And the mere fact 
that a passenger is drinking or under the in- 
fluence of liquor is not enough to put upon 
trainmen the extra duty of giving to him more 
care than to other passengers. This measure 
of duty is only demanded when the condition of 
the passenger is such that he is helpless or in- 
capable of taking care of himself. If a passen- 
ger on account of intoxication that does not 
produce helplessness or incapacity is rendered 
less capable of protecting himself from accident 
or injury than he otherwise would be or his 
condition induces him to become more indifferent 
to his safety, he must take the consequences of 
his own recklessness, and the company will not 
be charged with the duty of taking especial care 
of him. His right to recover is no greater than 
would be that of a sober person of ordinary pru- 
dence. A man may be under the influence of 
liquor and yet be as competent to protect him- 
self from danger as a thoroughly sober man 
would be. And it often happens that sober men 
expose themselves to dangers that a partially in- 
toxicated man would avoid. And so there is 
good sense and reason in the rule that the 
sober man and the partially intoxicated man 
are entitled to the same measure of care — one 
not more than the other. But when a passen- 
ger is so much under the influence of liquor as 
to be helpless or irresponsible or incapable of 
protecting himself from accident, and his condi- 
tion is or could be known by the trainmen in the 
exercise of reasonable care, the plainest dictates 
of humanity demand that he should not be per- 
mitted to remain or place himself in unnecessary 
peril if the persons in charge of the train by the 
exercise of reasonable care can prevent it. But 
trainmen are not obliged to anticipate that a 
passenger who is under the influence of liquor 
will unnecessarily expose himself to danger, nor 
are they under any duty to exercise more than 
ordinary care to discover whether passengers 
are drunk or sober. It is only when their at- 
tention is directed either by personal observation 
or information to the helpless, irresponsible or 
incapable condition of a passenger or when by 
the exercise of ordinary care his condition could 
be discovered that they are under a duty to ex- 
ercise reasonable care to protect him." 

This is an accurate statement of the whole 
law, to which the facts of this case must be 
applied. 

[2] To sustain her charge, appellee Intro- 
duced twelve witnesses, the first six of whom, 
and Dr. Ed Mudd, gave evidence simply to 
prove that the death of appellee's intestate, 
which did not occur for more than six months 
after the accident, resulted therefrom. Mrs. 
Lou Coy was introduced to prove decedent's 
condition as to sobriety some three or four 
hours before he boarded the train at Louis- 
ville, but ber evidence was properly excluded 
by the court, as it was too remote in time to 
be of any probative value. Of the other four 
witnesses testifying for appellee, two of 
them, Lloyd E. Mudd, one of decedent's sons, 
and Everett Masterson, testified as to the 
condition of decedent for the two hours Just 
before he boarded the train at Louisville, 
while Leu Thompson and Don McLain testified 
as to his condition of sobriety when he was 
discovered after falling from the train and 
while his wounds were being dressed. It will 



thus be seen that no witness for appellee tes- 
tified as to the condition of decedent during 
the two hours and a half he was on the appel- 
lant's train, and during which time, only, 
appellant owed any duty to the decedent. 
No witness testifying for plaintiff states 
that, during the time decedent was on the 
train, he was in a helpless or drunken condi- 
tion, or that he was not entirely capable of 
taking care of himself, or that he said or did 
anything, while on the train, to suggest or 
indicate to appellant's servants in charge of 
the train that he was In such a state of in- 
toxication as to require any assistance or 
special attention, or In fact, that he was 
even drunk. 

[8] As appellant's duty to decedent existed 
only during the time he was a passenger on 
the train, and was dependent upon his condi- 
tion only during that time, appellant objected 
and excepted to the introduction of all of the 
evidence of decedent's condition, both before 
he got on the train, and after he left It, and 
it is Insisted here that the Introduction of 
such evidence was error, and that that evi- 
dence was Incompetent; but, as it was neces- 
sary, in order to make out a case, for appel- 
lee to prove that her decedent was in a 
helpless condition from intoxication, evidence 
of the extent of his intoxication, within a 
reasonable time before and after the time he 
was on the train as a passenger, was, we 
think, competent, although not of the same 
probative value, of course, as evidence of his 
condition during the time he was on the train. 
That decedent had been drinking within a 
short time before he got on the train and was 
in such condition from the intoxicants taken 
that, though able to walk to the train, he 
required assistance, tended to show that dur- 
ing the time he was on the train he was un- 
der the influence of intoxicants to some ex- 
tent at least, and, while not sufficient to es- 
tablish the fact that decedent at the time of 
the accident was in a helpless state of in- 
toxication, the fact that appellee had to es- 
tablish in order to make her case it was 
nevertheless competent, although of no 
great probative value, and the court did not 
err in admitting this evidence. For the same 
reason the evidence of Len Thompson and 
Don McLain as to the extent of decedent's 
Intoxication within a short time after the ac- 
cident was also competent, even though It 
alone or in connection with the other evidence 
was not sufficient to make out appellee's case. 

[4] Having decided that this evidence was 
competent, we come now to the question 
whether or not the evidence of these four 
witnesses was sufficient to carry the case to 
the jury. It will be noticed, from the rule as 
quoted^ above from the Gregory Case, that in 
order to make out her case it was necessary 
for appellee to prove not only that decedent 
was In a helpless, irresponsible, or incapable 
condition, but also that the servants of ap- 
pellant either knew of that condition or by 



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104 



191 SOUTHWESTERN REPORTER 



the exercise of ordinary care could have dis- 
covered It. Lloyd Ei Mudd, decedent's son, 
testified that at 4 o'clock on the afternoon of 
the accident, when be arrived In Louisville 
from Lakeland, his father was drunk ; that 
witness and decedent walked from the inter- 
urban station, at Second and Jefferson streets, 
over to Fourth street, out Fourth street to 
Broadway, and out Broadway to tbe Union 
Depot, where they arrived at 4:46 p. m.; 
that on the way to the depot they stopped in 
about a half dozen saloons, la each of which 
decedent drank beer; that decedent had a 
half pint bottle of whisky, out of which he 
and Masterson each took a drink in the lava- 
tory before he got on the train; that he and 
Masterson walked, one upon either side, with 
decedent to the train, and helped him to 
mount the steps and to a seat in the train 
where they left him, about 10 or 16 minutes 
before the time for the train to leave tbe sta- 
tion; that as he left the train be said to the 
flagman: 

•"The old gentleman is drinking considerably; 
I wish you would see that he gets off at Loretto 
Station." 

Masterson testified that he first saw dece- 
dent and his son about 6 o'clock upon tbe 
afternoon of the accident, when they came 
into the depot; that decedent was then 
drunk ; that his son, Lloyd E. Mudd, assisted 
him to the train by holding his arms part of 
the time; that decedent wasn't able to go 
by himself, very well; that they botb helped 
decedent up the steps and into the train; 
that as they came out of tbe train he heard 
the son say something to tbe flagman, but 
didn't understand what it was. Len Thomp- 
son testified that when upon the arrival of the 
train at Loretto Station he learned that de- 
cedent had fallen from the train, he, with 
James Smith, went along the track until 
they found the decedent lying near tbe 
track with his coat up over bis bead, ap- 
parently dead, but when witness pulled his 
coat from over his head he said, "Let me 

alone you G d d n sons of bitches ; let 

me alone ; let me die right here ;" that sever- 
al others then came up and put decedent 
in the baggage car and took him up to the 
store, where Dr. Clssell dressed his wounds, 
and that he kept "cussing" while his wounds 
were being dressed; that decedent was either 
drunk or unconscious; he didn't know which; 
that decedent remained at Dr. Cissell's about 
an hour and a balf, when he got in a buck- 
board with his son to go to his home five 
miles in tbe country; that after bis wound 
had been dressed and when he started home 
he pulled his derby hat "down clear over his 
head ; clear over the sores and all" ; that he 
was either drunk or unconscious; he didn't 



know what he was doing. Don McLaln tes- 
tified that on tbe night of tbe accident he 
was at Loretto Station when tbe train 
came In; that after the train came in he 
went to where decedent was lying, about a 
quarter of a mile from tbe station; that de- 
cedent was lying on bis right side, drawn up, 
and his coat was over his head ; that some 
one shook decedent, who then kicked at them 
and said, " 'Let me alone, you damn sons of 
bitches; let me alone; don't bother mef 
I could see Doctor was very drunk and had 
the smell of whisky all over him, and be was 
very drunk;" that decedent's eye seemed al- 
most entirely closed; "that eye was almost en- 
tirely clogged up with blood." This is tbe 
substance of the evidence which has even a 
tendency to show that decedent was in a 
helpless condition, and, in our judgment, 
falls far short of establishing the fact that 
decedent was, while on the train, in such a 
state of intoxication as to render bun helpless 
or Incapable of taking care of himself; but 
even If it might be considered that this testi- 
mony furnished some evidence that decedent 
was so drunk as to be helpless or Incapable 
of taking care of himself, which we do not 
concede, it certainly cannot be contended 
that it furnished any evidence that his con- 
dition was such that tbe train officials, in 
the exercise of ordinary care, could have dis- 
covered that he was helpless or Incapable of 
taking care of himself. This eyfdence, In our 
minds, does no more than prove that decedent 
was somewhat under the Influence of intoxi- 
cants, while a passenger on the train, but does 
not even tend to prove that his condition was 
such that the trainmen should have, anticipat- 
ed that when bis station was announced he 
would immediately get up and get off the 
train, while it was running at a rapid rate, 
and we are of the opinion that the court erred 
in overruling appellant's motion for a peremp- 
tory instruction at the conclusion of plain- 
tiff's evidence, and again after all the evi- 
dence on botb sides was In; the evidence 
for tbe defendant having shown that dece- 
dent, while on the train, was not in a help- 
less condition ; that he did not do or say any- 
thing that would indicate' that he was not 
entirely capable of caring for himself; that 
his behavior and conversation on the train 
were unobjectionable; that he walked about 
the train without assistance, at one tune go- 
ing into another coach and returning, while 
the train was in motion, without assistance. 

As another trial will be necessary, we do 
not now pass upon the question as to whether 
or not the verdict was excessive. 

For tbe reasons indicated, the judgment 
Is reversed, and cause remanded for further 
proceedings consistent herewith. 



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DAT COMMONWEALTH 



106 



DAY v. COMMONWEALTH. 
(Court of Appeals of Kentucky. Jan. 19, 1017.) 

1. Criminal Law «=>562— Proof— Evidence 
of Motive. 

Proof of motive alone is insufficient to put 
one on his defense. 

[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. |{ 1253, 1263; Dec. Dig. «=» 
582.] 

2. Criminal Law <8=> 427(2)— Declarations 
—Evidence to Show Conspiracy. 

There being no proof of S., indicted with 
defendant, having participated in the crime, 
or of a conspiracy between them to commit it, 
S.'b declarations, not in defendant's presence, 
are inadmissible against her. 

[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. { 1012: Dec. Dig. *=»427(2).J 

3. Criminal Law *=»780(1)— Instructions— 
Declarations of Conspirators. 

Where there is prima facie proof of con- 
spiracy between defendant and a joint indictee, 
on which his declarations are admitted against 
her, the jury should be instructed that they 
cannot be considered unless they believe be- 
yond a reasonable doubt that the conspiracy 
was formed. 

[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. } 1859; Dec. Dig. «=>780(1).] 

4. Criminal Law <S=>427(1>— Declarations 
of Conspirators— Indictment. 

Conspiracy need not be expressly averred 
in a joint indictment of two for commission of 
a crime, to permit evidence thereof, so as to 
allow declarations of one to be admitted against 
the other. 

[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. I 1012 ; Dec. Dig. «=»427(1).] 

5. Criminal Law <e=»814(3>— Instructions— 
Applicability to Evidence. 

An instruction, predicated on the existence 
of facts of which there is no evidence, is unau- 
thorized, and can only tend to confuse and 
mislead. 

[Ed. Note.— For other cases, see Criminal 
Law. Cent Dig. || 1979, 1985; Dec Dig. «^» 
814(3).] 

6. Criminal Law «=»814(1)— Instructions— 
Conformity to Issues. 

Defendant denying the killing with which 
she is charged, the instructions should be con- 
fined to that issue; and she is not entitled to 
one to acquit if deceased died of disease. 

[Ed. Note.— For other cases, see Criminal 
Law. Cent. Dig. II 1979, 1980; Dec. Dig. «=» 
814(1).] 

7. Criminal Law «=>824(8) — Cautionary 
Instructions— Necessity of Request. 

Failure of the court to admonish the jury 
that evidence of defendant's bad reputation for 
morality and truth should be considered only 
as affecting her credibility is not error; the 
court's attention not having, at the time of 
its introduction, been called to the necessity 
thereof. 

[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. { 1999; Dec. Dig. «=>824(8).] 

8. Criminal Law <S=»1173(2) — Appeal — 
Harmless Error— Instructions. 

Failure of the court, after its attention is 
called to the necessity thereof, to admonish 
the jury that evidence of defendant's bad repu- 
tation for morality and truth should be con- 
sidered only as affecting her credibility is not 
reversible error, unless it appears from the 
whole record that her substantial rights were 
thereby prejudiced. 

[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. | 3165; Dec. Dig. «=>1173(2).] 



9. Criminal Law q3=»1159(2)— Appeal— Re- 
view— Sufficiency of Evidence. 
Reversal will be granted on the ground of 

insufficiency of the evidence, when and only when, 

the verdict is palpably against the evidence. 
[Ed. NoteJ— For other cases, see Criminal 

Law, Cent Dig. | 8075; Dec Dig. «=» 

1159(2).] 

Sampson, J., dissenting. 

Appeal from Circuit Courts Carter County. 

Sarah Day was convicted of murder, and 
appeals. Reversed and remanded, with di- 
rections. 

H. L. Woods and A. J. Counts, both of 
Olive Hill, for appellant M. M. Logan, Atty. 
Gen., and D. O. Myatt, Asst. Atty. QeiL, for 
the Commonwealth. 

HURT, J. The appellant, Sarah Day, a 
married woman of 40 years of age, and who 
had been married to her husband, James 
Andrew Day, for 19 or 20 years, and who had 
three children, one of whom was married at 
the time, was, together with one Bob Sparks, 
jointly, indicted In the Carter circuit court, 
and charged with the murder of her husband, 
James Andrew Day, by the administration 
to him, with the intent to murder him, of 
arsenic and other poisons to the grand jury 
unknown. The Indictment charged that ap- 
pellant and Sparks jointly committed the 
murder by administering arsenic and other 
poisons unknown to the grand Jury to the, 
deceased, and it further charged that each 
of them administered the poison, and that the 
other was present for the purpose of and aid- 
ed, assisted, encouraged, incited, and abetted 
the one administering the poison to commit 
the crime. Separate trials were requested 
by the accused, and the commonwealth's at- 
torney elected to proceed first against the 
appellant. The trial resulted in a verdict of 
the Jury and a judgment of the court, by 
which was imposed upon her a sentence of 
imprisonment for life. Grounds for a new 
trial were filed, and the appellant moved the 
court to set aside the verdict of the jury and 
Judgment of the court to grant her a new 
trial, but her motion and grounds were over- 
ruled. 

The grounds upon which a reversal of the 
judgment Is sought are: (1) The admission 
of incompetent evidence over the objection 
of the appellant ; (2) the court mhnnstructed 
the jury; (3) the court failed to Instruct the 
jury upon the whole law of the case; (4) 
the verdict is contrary to law, and not sua* 
talned by the evidence; (5) the jury, while 
trying the case, was taken by the sheriff, 
in charge of them, to a picture show and 
there permitted to witness a moving picture, 
the subject of which was a woman being 
tried for the murder of her husband. 

The facts of the transaction, as developed 
by the evidence, show that James Andrew 
Day was about 52 or 58 years of age, and re- 
sided with the appellant and a young son, 



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186 

about 13 years of age, In the village of En- 
terprise, in Carter county, which Is three or 
four miles from Olive Hill, at which latter 
place the married daughter of appellant and 
deceased lived, where she Is the wife of a 
merchant. The deceased had been engaged 
for some time, as a laborer, at a brickyard, 
near Enterprise, to which he would go each 
morning and remain during the day, return- 
ing to his home in the evening. He regular- 
ly took with him from his home when he 
was going to work at the brickyard, his din- 
ner, which it Is presumed that the appellant 
prepared for him. 

Several years ago the deceased employed 
Bob Sparks to work for him for a time, dur- 
ing which he resided at the home of the de- 
ceased, and thereafter, for a time, boarded 
at the house of the deceased Sparks la 
now a young man about 27 years of age. 
While being about the home of deceased, 
Sparks and appellant formed habits of in- 
timacy, which, during the last year of the 
life of deceased, and probably for a longer 
period, theretofore, resulted In their frequent- 
ly committing acts of sexual Intercourse, 
and exhibiting toward each other demonstra- 
tions of affection. Witnesses testify to hav- 
ing seen them engaged In embracing and 
kissing each other, and at one time, they 
were discovered occupying the same bed, 
and on other occasions, witnesses testify to 
having made arrangements between them for 
meetings at places, where they would be out 
of the sight of other people. During this 
time Sparks resided In the neighborhood, 
and almost every day, at some time during 
the day, would be at the home of appellant 
Sparks and appellant were seen at different 
times In company with each other upon the 
railroad trains, and upon one occasion went 
to Ashland together and remained overnight 
The appellant, In a small locket which she 
sometimes wore, had a picture of Sparks, and 
certain pictures of his were found in a kitchen 
safe at her home after the death of deceased. 
It does not appear that deceased ever made 
any objections to Sparks' intimacy with ap- 
pellant or that he knew of it or Buspidoned 
the truth about it Sparks was on some oc- 
casions at appellant's home when 'the de- 
ceased was present There does not appear 
to have been any trouble or estrangement 
between deceased and appellant on account 
of Sparks' Intimacy with her. In fact, it 
appears that he was told about it but per- 
sistently refused to believe It or to give any 
attention to It The only ill feeling that Is 
proven to have occurred between the appel- 
lant and her husband was that a year or 
two before his death a witness testifies that 
appellant, being much enraged, left the dwell- 
ing house and went toward the stable, with 
Che declaration that she was going to secure 
the axe and kill her husband, applying to 
him an approbrlous epithet, but It does not 
appear what this controversy was about and 



(Ky. 

It apparently ended in nothing, as they were 
ever after upon friendly terms, so far as the 
evidence discloses. It Is also proven that 
some months before the death of deceased he 
had some whisky, which he was saving for 
the purpose of refreshing himself when at- 
tending court at Grayson; that his small 
son and others drank the larger part of it 
and filled the vessel with water, and as the 
husband was going toward Grayson he took 
a drink out of the vessel, and when he dis- 
covered its worthlessness, he threw It away, 
and probably accused the appellant of having 
put the water in it She, in telling about it 
said she did not put the water In it but 
if she had an opportunity again she would 
put "plzen" in It Another witness testified 
that some months before the death of deceas- 
ed, he came home in the evening with his 
dinner uneaten, and said it smelt like it had 
been cooked with matches. The appellant at 
the time said that nothing of the kind had oc- 
curred, and she and the children presently 
ate the dinner. On another occasion, In the 
spring or summer before the death of de- 
ceased, while he and bis family were eating 
supper, a little niece took a cup off of the 
table in which to pour coffee for the de- 
ceased, when, as she says, she discovered 
some blue substance in the bottom of the cup, 
and called appellant's attention to It when 
appellant told her to get another cup, which 
she did. It seems that this blue substance 
was probably bluing, which was used In wash- 
ing clothing, and appellant so states. There 
was no circumstance in the evidence which 
directly proved that any arsenic or poison 
of any kind was ever administered to de- 
ceased by any one, either Intentionally or 
unintentionally. The case against appel- 
lant depended entirely upon circumstances, 
both as to the cause of the death and the 
administering of poison by the appellant 
Evidence was given by a druggist who has a 
place of business in Olive Hill, that on the 
29th of December the appellant purchased 
10 cents worth of arsenic in a powdered form, 
which she said, at the time, she intended to 
use for the extermination of rats. The same 
witness testified that on the 27th day of Jan- 
uary following she bought another 10 cents 
worth of arsenic of the same kind, which she 
said that she was procuring' at the request 
of a neighbor. The appellant denied the mak- 
ing of these purchases; but stated that In 
the fall previous to the death of deceased 
she bought from the same druggist a small 
quantity of Fowler's solution of arsenic, 
which is an arsenical preparation, less strong 
In its action than the powdered form, which 
she used, according to a prescription, for her 
stomach and for her complexion. In this 
statement she is corroborated by her sister. 
She also testified that about the time the 
druggist claimed that she purchased one of 
the quantities of arsenic in powdered form she 
purchased from him the vial of white vitriol 



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DAY t. COMMONWEALTH 



107 



for a neighbor, who had requested her to 
boy It for him, and this neighbor corroborat- 
ed her and testified that she delivered the 
vitriol to him. It was also in evidence that 
daring the months of December and January 
that the druggist was continually under the 
Influence of intoxicating liquors or some kind 
of a drug, which gave him the appearance 
of being in a drunken condition. In the latter 
part of January or the early half of February, 
the deceased was sick with a complaint which 
the physician, who was called to see him diag- 
nosed as la grippe. The sickness was attend- 
ed with vomiting, but lasted only a short 
time, and the physician was called to see 
him only one time. The deceased continued 
to work unto In the month of July, when he 
again complained and went to see a physician. 
On the 26th day of July be became bedridden. 
A physician visited him at this time, and 
continued his visits each day, with the excep- 
tion of one, until the 6th day of August, when 
deceased died. This physician states that In 
his opinion the deceased was afflicted with a 
strong poison of some character operating in 
his system, and that the symptoms of his 
sickness were the same as those exhibited 
by subjects of arsenical poisoning. On the 
27th day of July, he prescribed and gave to 
him a treatment calculated to eliminate the 
poison from the patient's body, which, from 
the evidence of the various physicians, who 
gave testimony, might be accomplished in 
from 10 to 20 days, but the weight of the evi- 
dence tended to show that arsenical poison 
could not be eliminated within that time. 
The appellant was present during the sick- 
ness of her husband, waiting upon blm and 
administering his medicine in large part to 
him. Immediately after the death, the coro- 
ner, who Is also a physician, took the stom- 
ach, pancreas, liver, one kidney, and the 
spleen, securely inclosed them In jars, and 
carried them to an expert pathologist, where 
an examination was made according to the 
latest methods taught by science to deter- 
mine the cause of the death, and a chemical 
analysis was made to determine whether 
any arsenic or other poison was in the por- 
tions of his body above mentioned. This ex- 
amination developed that there was no ar- 
senic In either the stomach, kidney, liver, 
spleen, or pancreas, and the pathologist 
unreservedly testified that the death was not 
due to arsenical poison. To defeat the force 
of the proof by the physicians, to the effect 
that the deceased did not die from arsenical 
poisoning, an argument is relied upon that 
the arsenic had been eliminated by the treat- 
ment before the death, but there is no sug- 
gestion of any reason why the deceased did 
not recover, Instead of dying, when the 
poison had been eliminated. The evidence 
also proved, that all, or quite all, of the symp- 
toms of the sickness of deceased were those 
of arsenical poisoning, but the proof as 
strongly shows that all of the symptoms of 



the sickness of deceased are or may exist 
in sickness arising from interstitial nephre- 
tls, which is one form of Bright's disease, and 
it was the contention of appellant that de- 
ceased came to his death from the ravages of 
that disease, and not from any poison ad- 
ministered to him. The evidence of the ex- 
pert who made the post mortem tended to 
prove that the deceased was suffering at the 
time of his death from Bright's disease. 

[1-1] (a) Over the objection of the appel- 
lant, the commonwealth was permitted to 
prove certain declarations which were made 
by Bob Sparks previous to the death of de- 
ceased, but not in the presence of or hearing 
of the appellant, and without her approval. 
Henry Carter proved that in the spring be- 
fore the death of deceased, while at the brick- 
yard, on one occasion Sparks asked him, "If 
he (witness) had ever seen his wife." Carter 
replied, "You have no wife." Sparks took 
off the back of his watch, wherein appellant's 
picture was pasted, and said, "That is my 
wife." At another time Sparks said that he 
thought more of appellant than any one he 
ever saw. Witness said to him, "Everything 
is in shape so you can't marry her." 

Thomas Johnson was permitted to state 
that about one month before the death of de- 
ceased, he and Sparks were working together, 
and he asked Sparks why he was keeping 
company with appellant, and Sparks answer- 
ed "that he loved her and was going to have 
her If it took death." 

Jap Gorby stated that Sparks asked him 
if he had ever seen his wife's picture, and 
showed him a picture In his watch which 
Sparks said was his wife. It was a picture 
of appellant 

Fred Walker testified that while deceased 
was sick he was at Sparks' home, and as he 
and Sparks left the house, Sparks' mother 
said something about appellant to Sparks, 
when Sparks cursed his mother, and when 
they bad gotten out in the road, Sparks said: 
"I wouldn't want none of the Days to fool 
with me, or I would take my pistol and 
blow their heads off." 

The appellant Insists that the proof of the 
foregoing declarations of Sparks was Incom- 
petent as evidence against her, and very prej- 
udicial to her substantial rights. The indict- 
ment does not charge that any conspiracy 
existed between appellant and her codefend- 
ant, Sparks, to murder the deceased, or that, 
in furtherance of such conspiracy, he was 
killed by them, or by any confederate of ei- 
ther of them. Under the indictment, a con- 
viction of appellant could be sustained In 
either of the three following states of case: 

(1) If appellant and Sparks together admin- 
istered the poison, which produced the death; 

(2) or if appellant alone administered the 
poison to deceased, which caused his death, 
either with or without a conspiracy existing 
between her and Sparks to kill him, or with 
or without the presence of Sparks as aider 
and abettor; (3) or if Sparks alone. admlnls- 



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191 SOUTHWESTERN REPORTER 



tered the poison which killed deceased, and i 
appellant was present for the purpose of and I 
aided and abetted Sparks In bo doing. If 
the Indictment had accused Sparks alone 
with having administered the poison which 
caused the death, and appellant with having 
been present and with having aided and abet- 
ted him In so doing, and the conviction of ap- 
pellant alone was sought upon such Indict- 
ment, It would be competent to prove any act 
or declaration of Sparks which would tend to 
show his guilt, because, unless it could be 
shown that he was guilty of the murder, it 
would be morally impossible for appellant to 
have aided and abetted him In It If, under 
such an Indictment, as last named, the evi- 
dence had entirely failed to show that Sparks 
administered the poison and caused the 
death, the charge against appellant of having 
aided and abetted him In the murder would 
necessarily fail. The fact that, In the In- 
stant case, the Indictment charges that they 
Jointly and together administered the poison, 
and that each of them alone administered It, 
and the other aided and abetted the one ad- 
ministering the poison in so doing, does not 
make the situation different, bo far as con- 
cerns appellant, from the state Of case where 
Sparks is alone charged with giving the poi- 
son and appellant as an aider and abettor of 
him, when it Is sought to show the guilt of 
appellant, upon the theory that Sparks ad- 
ministered the poison and appellant aided 
and abetted him. In the record of the trial 
of appellant, there Is not a scintilla of evi- 
dence which tends to prove that Sparks ad- 
ministered any poison to deceased, or even 
had any poison In his possession, or any op- 
portunity to administer it to the deceased. 
Neither does the evidence tend to prove, In 
the slightest degree, that Sparks and appel- 
lant, both being present, together administer- 
ed a poison to deceased. Hence, the evidence 
falling to even conduce to prove that Sparks 
was present, and that he and appellant to- 
gether administered poison to deceased, or 
that Sparks alone administered the poison, 
It was Impossible for appellant to aid and 
abet him In so doing. The declarations of 
Sparks, which were proven, would only con- 
duce to show a motive upon his part to com- 
mit the murder and the proof of his relations 
with appellant does not prove anything more, 
and the proof of a motive alone Is not suffi- 
cient to put one upon his defense. 13 R. O. 
I* 910. Upon the trial of appellant alone, if 
evidence had been heard which conduced to 
prove that appellant and Sparks together ad- 
ministered the poison to deceased, or that 
Sparks alone administered the poison which 
caused the death, and appellant was present 
and aided and abetted him, the proof of the 
declarations of Sparks, not made in the pres- 
ence of appellant, would have been competent 
as showing a motive for his acts, and that 
he committed the murder, but in the absence 
of a prima fade showing that at the time the 
declarations were made a conspiracy existed 



between him and appellant to commit the 
crime, it would have been the duty of the 
court upon the trial of appellant to have in- 
structed the jury that it could only consider 
the declarations of Sparks, not made in the 
presence of appellant nor approved by her, 
as evidence conducing to prove Sparks' guilt 
of the murder, If they tended to do so, and 
not as evidence against appellant to prove 
that she was present, and that she and 
Sparks committed the crime together, or that 
she aided and abetted him, if he alone did it. 
If, however, upon the trial of appellant alone, 
the proof had shown, prima facie, independ- 
ent, of the declarations of Sparks, that at 
the time they were made there existed a con- 
spiracy between him and appellant to kill 
the deceased, then the declarations of Sparks, 
In furtherance of such conspiracy and before 
its' consummation, would be admissible 
against appellant, although not made in her 
presence. The reason of this principle rests 
upon the doctrine of principal and agent. 
If two or more persons conspire to commit a 
crime, then the acts and declarations o'f each 
of them, In furtherance of the conspiracy 
and up to the time of its consummation. Is the 
act and declaration of each of the conspira- 
tors, as such is regarded in the nature of an 
agent of the other for the commission of the 
crime, but in the absence of a conspiracy 
there is no just ground upon which it can be 
contended that one person should be re- 
sponsible for the acts and declarations of an- 
other. Where a conspiracy is proven, prima 
facie, between a defendant on trial and one 
jointly indicted with him for the commission 
of the crime, and thus the acts and declara- 
tions of the codefendant not on trial, made 
during the existence of the conspiracy and in 
furtherance of it, are properly admitted as 
evidence against the defendant on trial, the 
court should, In substance, Instruct the jury 
that if it believes from the evidence beyond a 
reasonable doubt that a conspiracy was form- 
ed between the defendant on trial and the co- 
defendant not on trial to commit the crime, 
the acts and declarations of the codefendant, 
done and said in furtherance of the common 
design and before the consummation of it, 
become the acts and declarations of the de- 
fendant on trial; but the converse of this 
should also be given, so that the jury may 
understand under what circumstances and to 
what extent It is to consider the proven acts 
and declarations of the codefendant as evi- 
dence against the defendant on trial, or 
whether they should at all be considered. 

[4] Where two or more are jointly indict- 
ed for the commission of a crime, although 
there is no express averment of a conspiracy 
having been formed between them to commit 
the crime, the acts and declarations of each 
may be proven against the others, when a 
prima fade case of a conspiracy has been 
made out between them to commit the crime, 
if the declarations and acts are in further- 
ance of the common purpose, although not 



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DAT y. COMMONWEALTH 



109 



done nor said In the presence of each other, 
but the court should Instruct the Jury In re- 
gard to them, as above stated. Howard v. 
Commonwealth, 114 Ky. 372, 70 S. W. 1055, 
24 Ky. Law Rep. 1282; Golns v. State, 46 
Ohio St. 457, 21 N. E. 476; Boberson's Crim- 
inal Law, S! 105, 109; 5 E. C. L. 1087; Old- 
ham v. Bentley, 6 B. Mon. 431; Sodusky 
v. McGee, 7 J. J. Marsh. 266. Wher,e two or 
more persons are Jointly Indicted for the 
commission of a crime, and the evidence falls 
to show that the ones not on trial were pres- 
ent and assisted In the commission of the 
crime, or that a conspiracy existed between 
them and the defendant on trial to commit 
the crime, then the acts and declarations of 
the ones not on trial are not competent evi- 
dence. Hence, in the instant case, when it 
appeared that there was a failure of the 
proof to show that Sparks participated In 
the commission of the alleged crime, In any 
way, or that he had conspired with appel- 
lant to commit it, the court should have 
withdrawn and excluded from the considera- 
tion of the Jury the proof of all of the dec- 
larations of Sparks, not made In the pres- 
ence of appellant, and the failure to do so 
was prejudicial error. 

[•] (t>) The court below Instructed the Ju- 
ry, in substance, that if it believed beyond 
a reasonable doubt that appellant adminis- 
tered the poison to deceased with the Intent to 
kill him and caused his death, or that Sparks 
administered the poison to deceased with In- 
tent to kill him and appellant was present 
for the purpose of, and aided and abetted 
Sparks In, administering the poison, to find 
her guilty. For the same reasons heretofore 
given, the part of the instruction which au- 
thorized the conviction of appellant if Sparks 
administered the poison and appellant was 
present and aided and abetted him was not 
authorized. There was no evidence upon 
which to base such an instruction, and an 
Instruction should not be given upon issues 
which do not exist, as they can only tend 
to confuse and mislead the Jury. 

[•] (c) The contention of appellant that the 
court should have instructed the Jury that 
If It believed that the death, of deceased was 
caused from interstitial nephritis, to find 
appellant not guilty is not well taken. The 
defense In this case was a denial by appellant 
of having caused the death, and the issue 
was whether or not the appellant caused the 
death. It was competent for appellant to 
prove that the death was caused by disease, 
to support her denial of having caused it and 
to rebut the force of any circumstance tend- 
ing to show that she did do It. Upon the 
trial of one accused of a felonious homicide, 
if the killing is denied, that is the only Is- 
sue, and the instructions should relate simply 
to that issue, but if the killing Is admitted 
and it is attempted to be avoided by a claim 
that it was accidental or done In self-defense, 
then the Jury should be instructed along the 
lines of self-defense or accident, as the case 



may be. In the instant , case, if the admin- 
istering of the poison to the deceased bad 
been admitted and his death caused thereby, 
but it was claimed to have been administer- 
ed accidentally or unwittingly, then the Jury 
should have been instructed along such lines. 
Hunter v. Commonwealth, 171 Ky. 438, 188 
S. W. 472 ; Mlnniard v. Commonwealth, 158 
Ky. 210, 164 S. W. 804; Howard v. Com- 
monwealth, 81 S. W. 689, 26 Ky. Law Bep. 
465. 

(d) The fact that the jury, while consider- 
ing the case, was permitted to witness a 
moving picture show, where the subject was 
a woman being tried for the murder of her 
husband, need not be considered, as it will 
probably not occur upon another trial. 

[7, 1] (e) After the appellant had testified 
as a witness for herself, the commonwealth's 
attorney, in rebuttal, offered proof of the 
appellant's bad reputation for morality and 
truthfulness. This evidence was objected to, 
but the objections were overruled. The evi- 
dence was clearly competent for the purpose 
of Impeaching the credibility of the witness, 
but was not admissible for any other pur- 
pose. The court did not admonish the Jury 
that it should be considered for the purpose 
only of affecting the credibility of the ap- 
pellant as a witness, If it had that effect, and 
not as evidence conducing to prove her guilt 
of the crime charged. The appellant did 
not request the court to so admonish the Ju- 
ry, but the failure to admonish the jury as 
to what effect should be given the testimony 
is relied upon as a reversible error. The court 
was not called upon or required to give such 
admonition to the jury, unless at the time of 
the introduction of the testimony its attention 
was called to the necessity of such an ad- 
monition by objection, exception, or motion 
made by appellant. When its attention was 
called to the necessity of the admonition, it 
then was the duty of the court to have given 
It, but the failure to give the admonition is 
not reversible error, unless it appears from 
the whole record that the substantial rights 
of the appellant were thereby prejudiced, 
which question is not necessary to be. deter- 
mined, as the judgment will have to be re- 
versed upon other grounds. Benaker v. 
Commonwealth, 172 Ky. 714, 189 S. W. 928; 
Hayes v. Commonwealth, 171 Ky. 291, 188 
S. W. 415; Ochsner v. Commonwealth, 128 
Ky. 761, 109 S. W. 326, 33 Ky. Law Rep. 
119; Newman v. Commonwealth, 88 S. W. 
1089, 28 Ky. Law Bep. 81 ; Feuston v. Com- 
monwealth, 91 Ky. 230, 15 S. W. 177, 12 Ky. 
Law Bep. 854 ; Johnston v. Commonwealth, 
170 Ky. 766, 186 S. W. 655 ; Wright v. Com- 
monwealth, 155 Ky. 750, 160 S. W. 476. 

[(] (f) The remaining ground upon which 
a reversal of the judgment is sought Is that 
It Is not supported by a sufficiency of evi- 
dence. In criminal cases, this court has con- 
sistently refused to reverse a judgment be- 
cause of it not being supported by sufficient 
evidence, unless the verdict is palpably 



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110 



191 SOUTHWESTERN REPORTER 



(Ky. 



against the evidence. Hall v. Common- 
wealth, 152 Ky. 812, 164 S. W. 897; Wilson 
v. Commonwealth, 140 Ky. 1, 130 S. W. 794; 
Harman v. Commonwealth, 140 Ky. 4, 130 
S. W. 787 ; Black v. Commonwealth, 154 Ky. 
144, 156 S. W. 1043; Cbaney v. Common- 
wealth, 149 Ky. 464, 149 S. W. 923. As the 
case must be tried again, we do not deem it 
proper to enter upon any further discussion 
of the evidence, further than to say that the 
Inconclusive character of the circumstances 
shown to prove appellant's guilt, and the 
apparently satisfactory character of the evi- 
dence offered to prove that deceased did not 
die from arsenical poisoning lead us to the 
conclusion that the verdict of the Jury is 
palpably against the evidence, and should 
have been set aside. The wrong done de- 
ceased by appellant's unfaithfulness doubt- 
less tended to stir the passions of the jury 
against her, but she should not be convicted 
of murder, unless proven guilty, although 
guilty of incontinence. 

For the reasons Indicated the Judgment is 
reversed, and the cause remanded, with di- 
rections to grant appellant a new trial and 
for proceedings consistent with this opinion. 

SAMPSON, J., dissenting. 



LARMON v. LARMON et al. 
(Court of Appeals of Kentucky. Jan. 26, 1917.) 

1. Dive Estates «=>17— Improvements— Re- 
mainder. 

A life tenant cannot make improvements 
and burden the remainderman with their cost, 
as the owner of the fee is entitled to receive 
his land at the expiration of the life estate in 
the same condition, natural wear and tear ex- 
cepted, as it was at the beginning. 

[Ed. Note.— For other cases, see Life Estates, 
Cent Dig. gf 37, 88, 42 ; Dec. Dig. «=>17.] 

2. Joint Tenancy «j=»8— Improvements— Lia- 
bility. 

One Joint tenant, for the purpose of pre- 
serving the common property, can compel the 
other to contribute to the expense of necessary 
repairs to a house belonging to them jointly. 

[Ed.* Note.— For other cases, see Joint Ten- 
ancy, Cent. Dig. |{ 5-11; Dec. Dig. «=>&] 

8. Remainders «=»9— "Merger" of Lite Es- 
tate—Requisites. 
Where the remainderman acquires title to 
the life estate, a merger occurs in which the life 
estate is extinguished ; but to constitute a merg- 
er it is necessary that the two estates be in one 
and the same person at one and the same time 
and in one and the same right 

[Ed. Note.— For other cases, see Remainders, 
Cent Dig. 5 6; Dec. Dig. <ge=>9. 

For other definitions, see Words and Phrases, 
First and Second Series, Merger.] 

4. Remainders «J=»9— Merger or Lot Es- 
tate— Equity. 
Equity will prevent or permit a merger of 
estates according to the intention of the parties 
and to protect the beneficial interests of the 
holder of the two estates ; so that, where a wid- 
ow entitled to dower in a tract and four of her 
six children conveyed their interests to another 



child, the life estate in his five-sixths interest 

was extinguished. 

[Ed. Note.— For other cases, see Remainders, 
Cent Dig. { 6 ; Dec Dig. «J=>9. ] 

5. Remainders £=»9— Merges of Lira Es- 
tate—Extent. 

It is an established corollary to the doctrine 
of merger that it will not operate beyond the 
extent of the part in which the owner has two 
several estates, and if the owner of a life estate 
acquires the fee to only a part of the remain- 
der, there will be a merger only pro tanto; so 
that the widow's life estate in an undivided one- 
sixth of the remainder belonging to the remain- 
derman not joining in the conveyance did not 
merge in the grantee's undivided five-sixths of 
the remainder, but he would hold an undivided 
one-sixth during her life, with remainder to 
plaintiffs, 

[Ed. Note.— For other eases, see Remainders, 
Cent Dig. | 6; Dec. Dig. «=»9.] 

6. Tenanot in Common <8=>2S(3)— Oocupa - 
tion of Cotenant— Rent. 

At common law one cotenant is not required 
to pay rent for his use and occupation of the 
premises, in the absence of an agreement to the 
contrary, unless he excludes his cotenant, but 
following the rule under statutes similar to 4 
Ann, c 16, f 27, a joint tenant is liable to 
account for occupying more than his Bhare of 
the land, except as to such rents and profits as 
accrued from improvements made by his own 
skill and capital, and except where the property 
is susceptible of a several occupation, in which 
case a joint tenant in exclusive possession of a 
part without hindering the others in the use of 
their shares is not answerable to them for prof- 
its realized from the parts in bis exclusive oc- 
cupancy. 

[Ed. Note. — For other cases, see Tenancy in 
Common, Cent Dig. *f 78, 84, 86; Dec. Dig. 
«=>28(3).J 

7. Tenancy in Common £=»30— Liens— Con- 
tribution. 

It is a general rule that one joint tenant is 
entitled to contribution from his cotenant for 
liens and incumbrances paid by him, including 
mortgages, taxes, and ground rent 

[Ed. Note. — For other cases, see Tenancy in 
Common, Cent. Dig. §J 95, 96, 98, 99; Dec 
Dig. <8=>30.) 

8. Tenancy in Common «=>29(1)— Repairs- 
Improvement. 

One joint remainderman repairing a decayed 
house for the benefit of all is not entitled to 
contribution, where ho made the repairs during 
the period of the life estate. 

[Ed. Note.— For other coses, see Tenancy in 
Common, Cent Dig. §§ 89-91, 94; Dec Dig. 
«=>29(1).] 

9. Partition <©=> 114(2) — Costs — Statute. 

In an action by infant remainderman enti- 
tled to one-sixth of a tract against defendant 
entitled to the other five-sixths for the sale of 
the tract and for an accounting, the defendant 
was liable for the costs incurred upon his unsuc- 
cessful issue of improvements and rents, and, 
under the contribution statute (Ky. St ! 489), 
plaintiffs would pay one-sixth or the cost of the 
proceeding. 

[Ed. Note— For other cases, see Partition, 
Cent Dig.* 446; Dec. Dig. «=>114(2).] 

Appeal from Circuit Court, Warren County. 

Action by Carlton Larmon and another, 
infants, by their guardian, against John H. 
Larmon. Judgment for plaintiffs, and de- 
fendant appeals. Affirmed. 



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LARMON t. LARMON 



111 



W. B. Gaines, of Bowling Green, for ap- 
pellant. Sims, Rodes & Sims, of Bowling 
Green, for appellees. 

MILLER, J. Upon the death of Conley J. 
Larmon, of Warren county, In 1893, 50 acres 
of land near Alvaton were allotted to his 
widow Mary Larmon, as dower. Conley Lar- 
mon left six children surviving him. One 
son, Clem C. Larmon, has since died, leaving 
two infant children, Carlton Larmon and 
Virginia Larmon. 

The house and farm , were reduced to a 
rery bad condition during the time they were 
occupied by the widow. The roof leaked, the 
plastering was falling from the celling, the 
cellar wall had given way, the fences were 
gone, and the farm badly run down. It be- 
came apparent that the widow was unable to 
preserve the place for the remaindermen in 
the condition In which she had received it 
So, by a deed executed in 1908, the widow 
and four of the adult children conveyed their 
Interests In the 50-acre dower tract to John 
H. Larmon, the remaining adult child of 
Conley Larmon, for $1,900. 

Upon his purchase John Larmon made ex- 
tensive Improvements upon the residence and 
outbuildings. He constructed a road from 
the turnpike to the house ; built an addition 
to the barn, a garage, a woodhouse, a smoke- 
house, and a servants' house, concrete walks, 
a porch, and hearths; put a tin roof upon 
the residence, and repaired Its basement 
and pillars; repaired the roof of the dairy 
barn; put in a lighting plant and water 
works; put up 460 rods of wire fencing; 
painted the house— all at a cost of $1,766. 
Immediately thereafter John Larmon took 
up his residence in the house, and has ever 
since continued to reside upon the dower 
tract His mother, Mary C. Larmon, died 
in 1913. 

On April 24, 1914, this action was brought 
by the infants, Carlton Larmon and Virginia 
Larmon, through their guardian, against 
John H. Larmon, for a division of the 50 
acres and an accounting for the plaintiffs' 
portion of the rents since the death of the 
widow, a period of one year. 

By answer John H. Larmon denied that 
the land could be divided without materially 
Impairing its value; and by way of counter- 
claim he alleged that the improvements he 
had put upon the land had enhanced its sal- 
able value to the extent of $1,200, and asked, 
In the event the court should find that the 
land could be divided, that it be done so as 
to locate his improvements upon his five- 
sixths interest In the land when divided, and 
that in making said division the Improve- 
ments be disregarded. 

Upon proof taken, the court found the land 
to be Indivisible between the owners without 
materially impairing its value, and ordered 
a sale of the tract as a whole and a division 
of the proceeds. It allowed John H. Larmon 
nothing for his improvements. The judg- 
ment was entered on March 13, 1916, and 



further held that the reasonable rental value 
of the infants' one-sixth Interest in said 
land from the death of Mary Larmon, the 
widow, to the time the judgment was enter- 
ed, was $75, for which sum the guardian took 
judgment against the defendant John H. Lar- 
mon, who is now prosecuting this appeal. 

[1,2] 1. Appellant's counsel frankly con- 
cedes that the law does not permit a life ten- 
ant to make improvements and burden the 
remainderman with their cost, and that the 
owner of the fee is entitled to receive his 
land at the expiration of the life estate in 
the same condition, natural wear and tear 
excepted, as It was at the beginning. He In- 
sists, however, that this is not the case of a 
life tenant seeking to charge the remainder- 
men with improvements made by the life 
tenant but a case between joint tenants; 
and he invokes the doctrine well established 
In this state that one joint tenant can for 
the purpose of preserving the common prop- 
erty compel the other to contribute to the ex- 
pense of necessary repairs to a house belong- 
ing to them jointly. This doctrine was fully 
recognized in Alexander v. Ellison, 79 Ky. 
153, where the court said: 

"At the common law, if there are two tenants 
in common, or joint tenants of a house or mill, 
and it should fall into decay, and one is willing 
to repair and the other is not, he that is willing 
to repair shall have a writ de reparations faci- 
enda; for owners are bound pro bono publico 
to maintain houses and mills which are tor the 
habitation and use of man. Story's Equity, { 
1235." 

See, also, Coke, Litt 54b, 200b; 4 Kent, 
370; Ward v. Ward, 40 W. Va. oil, 21 8. B. 
746, 29 L. R. A. 449, and note, 62 Am. St 
Rep. 911. 

But as above stated, the right of a life 
tenant against the remainderman is not so 
far-reaching. 

In Gray's Adm'x v. McConnelL 144 Ky. 
607, 189 & W. 839, it was said: 

"Appellant contends that as the improve- 
ments were permanent and served to enhance 
the remainder interest the value of the im- 
provement should be apportioned by the chan- 
cellor between the life tenant and remainder- 
men. In some jurisdictions this may be done, 
but that rule has never been adopted in this 
state. Here the rule is that the life tenant 
cannot charge the corpus of the estate with 
improvements, nor is he entitled to compensa- 
tion for enhancement of the property by rea- 
son of such improvements. As is said in the 
case of Frederick v. Frederick [102 S. W. 858, 
13 L. R. A (N. S.) 5141 31 Ky. Law Rep. 
683: It is a sound rule of public policy which 
denies the life tenant the power to charge the 
estate for his improvements, although they may 
enhance the value of the property.' To the 
same effect see Henry v. Brown, 99 Ky. 13 [34 
S. W. 710, 17 Ky. Law Rep. 1329] ; Wilson v. 
Hamilton, 140 Ky. 827 [181 8. W. 783]." 

See, also, Robsion v. Gray, 29 Ky. Law 
Bep. 1297, 97 S. W. 847; StovaU v. May- 
hew, 178 Ky. 212, 190 a W. 676. 

So, if appellant held his estate In joint 
tenancy or as a tenant In common with the 
infant plaintiffs at the time he made the 
Improvements Immediately after his pur- 



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191 SOUTHWESTERN REPORTER 



chase of the life estate, be would be entitled 
to contribution from his cotenants as to the 
extent that his Improvements went to preserve 
the buildings then upon the land; but, If 
he was then a life tenant, he wonld have 
no such right, since it will be presumed In 
that case that the improvements were made 
for his personal use and comfort. 

[3] In support of John H. Larmon's con- 
tention It is suggested that his purchase of 
the life estate made him a tenant In com- 
mon under the doctrine of merger. It is a 
familiar doctrine that, where the remainder- 
man acquires title to the life estate, a merger 
occurs in which the life estate is extinguish- 
ed. The doctrine is stated by Blackstone as 
follows: 

"Whenever a greater estate and a less co- 
incide and meet in one and the same person, 
without any intermediate estate, the less is im- 
mediately annihilated, or, in the law phrase, it 
is said to be merged, that is, sunk or drowned 
in the greater. Thus, if there be a tenant for 
years, and the reversion in fee simple descends 
to or is purchased by him, the term of years 
is merged in the inheritance, and shall never 
exist any more." Com. II, 177. 

See, also, 4 Kent, 103; Clark v. Parsons, 
69 N. H. 147, 39 Atl. 898, 76 Am. St Rep. 
157; Pynchon v. Stearns, 11 Mete. (Mass.) 
312, 45 Am. Dec. 207; Mangum ▼. Piester, 
16 S. C. 316; McCreary v. Coggeshall, 74 
S. C. 42, 53 S. E. 978, T L R. A. (N. S.) 433, 
7 Ann. Cas. 693; Forthman v. Deters, 206 
111. 159, 69 N. E. 97, 99 Am. St Rep. 146. 
and note. 

[4] To constitute a merger it Is necessary 
that the two estates be In one and the same 
person, at one and the same time, and in 
one and the same right Blackstone, supra; 
10 R. O. L. p. 666; 16 Cyc. 667. While the 
rule Is said to be Inflexible at law, equity 
will prevent or permit a merger of estates 
according to the intention of the parties and 
to protect the beneficial interests of the bold- 
er of the two estates. 2 Pom. Eq. Jur. (3d 
Ed.) f 788. The doctrine baa been recogniz- 
ed by this court In Logan v. Steele, 7 T. B. 
Mon. 101, Fox v. Long, 8 Bush, 651, and in- 
cidentally, in Hunt v. Phillips, 105 S. W. 446, 
32 Ky. Law Rep. 258. 

In Fox v. Long, supra, Chief Justice Pry- 
or, speaking for the court, said: 

"The appellee is the owner in fee simple of 
nine-tenths of the land, has purchased or leased 
the entire life estate of the appellant and it 
would be a novel proceeding to permit an action 
for waste or a distress warrant to issue for 
rent against the party who owns both the great- 
er and the less estate. The less estate has in 
fact been merged into the greater; the life ten- 
ancy has gone out of existence: and no such 
relation as that of landlord ana tenant exists 
between the parties. 

"In this ease there is a union of the fee-simple 
estate and the estate for life, by which the es- 
tate for life is extinguished. It is difficult to 
perceive how one can have the fee-simple estate 
and a life estate in the same tract of land. If 
the life estate is the only estate preceding the 
estate in reversion or remainder, and the re- 
mainderman buys the life estate, or under such an 
agreement as this rents the estate for life, for 
and during the life of the party entitled to it, I 



the lesser estate is gone, for the fee-simple estate 
includes both." 

[6] From this It follows that when John 
H. Larmon bought the life estate from bis 
mother in 1913, the life estate In his five- 
sixths interest was extinguished, and be 
held his five-sixths interest in fee simple. 
But did the merger, thus accomplished, have 
the effect of making John H. Larmon the joint 
tenant or tenant In common with the infant 
plaintiffs who owned the remaining undivided 
one-sixth interest In remainder? It is, how- 
ever, an established corollary to the doctrine 
of merger that It will not operate beyond the 
extent of the part In which the owner has 
two several estates. Clark v. Parsons, su- 
pra; Bowlin v. Rhode Island Hospital Trust 
Co, 81 R. I. 289, 76 AtL 348, 140 Am. St 
Rep. 768; 10 R. C. L. p. 668. 

In Clark v. Parsons, supra, the case was 
Id principle Identical with the case at bar; 
Joseph and James Parsons, the life tenant 
and one of the remaindermen, having sold 
their Interests to Berry, leaving one remain- 
der interest unsold and In the bands of the 
children of Isaac Parsons, a deceased re- 
mainderman. In that case the court said: 

"It is claimed that when the life estate and 
the estate of one tenant in common of the re- 
mainder were granted to Berry, a merger of the 
life estate in the fee was effected by the co- 
incidence of the two estates in one person, and 
that the life estate in the entire property was 
thereby extinguished. It is a sufficient answer 
to say that the life estate in the undivided 
half of the remainder belonging to Isaac could 
not merge in the undivided half of the remain- 
der belonging to Berry ; neither could the con- 
veyance or the life estate to Berry be construed 
as a surrender, enure to the benefit of Isaac 
or those who claim under him. 'Merger is co- 
extensive with the interest merged, as in the 
case of joint tenants and tenants in common ; 
and it is only to the extent of the part In which 
the owner has two several estates. An estate 
may merge for one part of the land and contin- 
ue in the remaining part ef it' 4 Kent's Com- 
mentaries 100, 101; Clark v. Clark, 66 N. H. 
105. 113: McLaughlin v. McLaughlin, 80 Md. 
115 [30 AU. 607]." 

The rule Is concisely stated In 16 Cyc. 668, 
as follows: 

"If the owner of a life estate acquires the 
fee to only a portion of the remainder, there will 
be a merger pro tanto, but the life estate in the 
remainder of the property will not be affected." 

It follows, therefore, that the widow's life 
estate In the undivided one-sixth of the re- 
mainder belong to the infant plaintiffs did 
not merge into the undivided five-sixths of 
the remainder belonging to John H. Larmon, 
and that John H. Larmon still held an un- 
divided one-sixth Interest during the life of 
bis mother, with the remainder in that Inter- 
est belong to the Infant plaintiffs. Conse- 
quently, at the time John H. Larmon made 
the Improvements, his occupancy of the un- 
divided one-sixth Interest of which the In- 
fants were the remaindermen was that of a 
life tenant and the law as between a life 
tenant making Improvements and his remain- 
derman, as above stated, applied. 

[I] Appellant further contends that the 



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LOUISVILLE A N. R CO. v. KIBBT 



113 



circuit court erroneously charged him with 
$75 rent for the Infants' share of the land 
for the year he occupied it as joint tenant. 
At common lav one co tenant is not required 
to pay rent for the use and occupation of the 
premises while he remain in possession, in 
the absence of an agreement to the contrary, 
unless he excludes his cotenant. 23 Cyc. 481. 
The reasons for the rule are that each tenant 
is entitled to the occupation of the premises, 
and possession of one tenant In common is 
constructively the possession of all; the pos- 
session of one being deemed to be for the 
benefit of himself and his cotenant But, un- 
der the statute of 4 Ann, c. 16, 8 27, and sim- 
ilar statutes adopted In this country, a Joint 
tenant is now liable to account for occupying 
more than his share of the land, except as to 
such rents and profits as accrued from im- 
provements made by his own skill, labor, and 
capital, and except where the property is 
susceptible of a several occupation, in which 
event a joint tenant in exclusive possession 
of a part, without hindering the others from 
the use of their shares, is not answerable to 
them for profits realized from the portions in 
bis exclusive occupancy. 25 Cyc. 491. This 
rule was approved In Nelson's Heirs v. Clay, 
7 J. J. Marsh. 138, 23 Am. Dec. 387. See, 
also, Johnson's Adm'r v. Johnson, 155 Ey. 
11, 159 8. W. 806; Ward v. Ward, 40 W. Va. 
611, 21 S. E. 746, 29 L. B. A. 449, 62 Am. St 
Bep. 911 ; Gage v. Gage, 66 N. H. 282, 29 AO. 
543, 28 L. R. A. 829, and note; Schuster v. 
Schuster, 84 Neb. 98, 120 N. W, 948, 29 L. R 

A. (N. S.) 224, and note, 18 Ann. Cas. 1078. 
Appellees had the right, therefore, to main- 
tain their action for rents, and the proof 
sustained the amount awarded. 

[7, t] Appellant insists, however, that his 
improvements, to the extent they enhanced 
the salable value of the land, should at least 
hare been set off against appellees' recovery 
for rent Unquestionably the Improvements 
enhanced the salable value of the land great- 
ly more than $75. This claim, however, Is 
based upon the theory that the Improvements 
were made by Larmon as Joint tenant and 
not by him as life tenant; and there are cas- 
es holding that the set-off may be made be- 
tween cotenants. Hlxon v. Bridges, 38 S. W. 
1046, 18 Ky. Law Bep. 1068; Vermillion v. 
Nlckell, 114 S. W. 270. 

It is a general rule that one Joint tenant 
is entitled to contribution from his cotenant 
for liens and Incumbrances paid by him, in- 
cluding mortgages, taxes, and ground rent 
23 Cyc 490; Hogan v. McMahon, 115 Md. 
195, 80 AtL 695, Ann. Cas. 1912C, 1262; Par- 
sons v. Urie, 104 Md. 238, 64 Atl. 927, 8 L. 

B. A. (N. S.) 559, 10 Ann. Cas. 278; American 
Bonding Co. v. National Mechanics' Bank, 
97 Md. 598, 65 AtL 395, 99 Am. St. Rep. 532, 
and note; Stokeley v. Flanders, 128 S. W. 
606. And, as above shown, this rule has been 
extended In this state so as to give the right 
of contribution to one cotenant who furnish- 



es necessary repairs to a decayed house. 
Alexander v. Ellison, supra. 

From this It is argued that where one 
Joint remainderman repaired the decayed 
house for the benefit of all, as here, he is 
entitled to contribution, although he made 
the repairs during the period of the life es- 
tate. This theory, however, completely over- 
looks the fact that the repairs were made by 
Larmon as life tenant, and not as the joint 
tenant of the infant plaintiffs, and that the 
law does not permit the life tenant to incum- 
ber the estate of the remaindermen. It was 
the duty of the life tenant to keep up the re- 
pairs and preserve the estate, and it is imma- 
terial whether the widow or John Larmon 
was the life tenant upon whom that duty fell. 
To say that a remainderman ought to have 
the right to preserve the houses belonging 
to all the remaindermen and be reimbursed 
therefor is no answer to the contention of the 
other remaindermen, since a remainderman 
has ample protection in his equitable reme- 
dy of injunction or for a receiver to take 
charge of and preserve the premises upon 
the delinquency of the life tenant 

The circuit court properly refused to set 
off appellant's claim for Improvements 
against the rent 

[I] Appellant further contends that the 
Judgment required him to pay all the costs 
of the action. We do not think the Judg- 
ment Is to be so construed. The appellant 
was liable for so much of the costs as was In- 
curred upon the issue of Improvements and 
rents, and the judgment so determines. Un- 
der the contribution statute, however, the 
appellees will pay one-sixth of the costs at- 
tending the proceedings for the sale of the 
land, each party being represented by counsel 
and paying the fee of his own attorney. Ky. 
St. | 489 ; Thirlwell's Adm'r v. Campbell, 11 
Bush, 163. 

Judgment affirmed. 



LOUISVILLE 4 N. B. CO. v. KIBBT. 
(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. NEGLIGENCE «=»119(4)— PLEADING— VARI- 
ANCE. 

Where the particular negligence relied on is 
specified, the plaintiff will be confined in his 
proof to its establishment 

[Ed. Note.— For other cases, see Negligence, 
Cent Dig. § 208; Dec. Dig. <S=»119(4).] 

2. Negligence «j=»119(1) — Pleading — Mat- 
ters to be Proved. 

The proof of negligence must conform to the 
allegations, for neither allegations nor proof 
alone are sufficient. 

[Ed. Note.— For other cases, see Negligence, 
Cent Dig. H 203-206; Dec. Dig. «s»119(l).] 

3. Master and Servant «=>264(5) — Vari- 
ance—Hand Cab Operation. 

Under allegations that a hand car was negli- 
gently operated because going too fast testimo- 



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191 S.W.-8 



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114 

ny that those operating It carelessly Jerked its 
propelling lever was inadmissible. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent Dig. § 866; Dee. Dig. <8= 
264(5).] 

4. Master and Servant oj=»287(8) — Jubt 
Question — Fellow Servant or Straw 
Boss. 

Testimony by plaintiff and another witness 
that their foreman had designated a subboss for 
a particular hand car trip. Is sufficient to make 
such person's status ss fellow servant or straw 
boss a jury question. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent Dig. | 1064; Dec. Dig. «=> 
287(8).] 

5. Master and Sebvant «>=>270(18)^ Admis- 
sibility of Evidence— Speed of Hand Gab. 

Under allegations that plaintiff servant waa 
injured by a hand car negligently operated too 
fast and testimony estimating the hand car's 
speed in miles per hour, it was reversible error 
to exclude defendant's offered testimony that it 
was not being operated at an unusual speed. 

[Ed. Note.— For other cases, see -Master and 
Servant, Cent.Dig. § 926; Dec.Dig. «=»27<X16).] 

6. Masteb and Sebvant «=»294(2)— Instruc- 
tions— Fellow Servants. 

An instruction, correctly defining fellow 
servants is improper, where plaintiff's compan- 
ions were fellow servants as a matter of law, 
with the possible exception of one temporarily 
made a straw boss. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent Dig. i 1162; Dec. Dig. «=» 
294(2).] 

7. Damages <8=»216(8) — Instructions — Pkb- 

SONAL lNJURIEa 

An instruction, permitting a servant to re- 
cover concurrently for loss of time and impair- 
ment of his earning power, is reversible error. 

[Ed. Note.— For other cases, see Damages, 
Cent. Dig. f 663; Dec. Dig. «s>216(8).] 

Appeal from Circuit Court, Rockcastle 
County. 

Action by W. V. Kirby against the Louis- 
ville & Nashville Railroad Company. Judg- 
ment for plaintiff, and defendant appeals. 
Reversed and remanded. 

J. W. Brown and 0. O. Williams, both of 
Mt Vernon, and B. D. Warfleld, of Louis- 
ville, for appellant Bethurum & Lewis, of 
Mt. Vernon, for appellee. 

THOMAS, J. The appellee (plaintiff be- 
low) was a member of a crew of hands en- 
gaged In doing some concrete work for the 
appellant (defendant below) In Hardin coun- 
ty on and for some time previous to October 
2, 1914. The foreman of the crew engaged in 
doing the work was one Hicks, and there 
were two classes of laborers composing the 
crew, one class including carpenters, whose 
duty it was to construct framework necessary 
to contain the concrete, and the other class 
being made up of those whose duty it was to 
mix and put the concrete in proper place. 
The wages of the carpenters were more than 
that of the concrete workers. Somewhere 
between one-fourth and one-half mile from the 
place where the work was being constructed 
was a boarding car located on a side track. 



(Ky. 

and in traveling from the work to the boarding 
car it was necessary for the hands to ride a 
hand car. Thomas Floyd was a member 
of the crew, and was one of the carpenters, 
while plaintiff was engaged in the concrete 
work. On October 2, 1914, while returning 
from dinner obtained at the ' boarding car, 
the hand car upon which plaintiff was rid- 
ing jumped the track and threw him off, 
whereby he sustained Injuries, to recover 
damages for which he filed this suit A part 
of the crew was just ahead of the hand car 
on which plaintiff Was riding; on this front 
car was the foreman, Hicks, while Thomas 
Floyd, one of the carpenters, and five others. 
Including plaintiff, were upon the derailed 
hand car. In a way, but vaguely, it 1s alleged 
In the petition that the plaintiff, at the time 
of his injury, was a member of the crew of 
hands which had a foreman in charge, who 
was superior in authority to plaintiff and 
the other members, and whose orders they 
were compelled to, and did, obey. The neg- 
ligence charged Is stated in this language: 

"That the agents and servants of the defend- 
ant in charge of said hand car, against this 
plaintiffs objections, and over the protest of the 
said plaintiff, managed and operated said car 
with such gross negligence and carelessness by 
running same too fast and at too great speed; 
that said car jumped the track of defendant's 
road and injured his back, shoulder, arms, and 
left leg to such an extent that he is permanently 
injured; that the said foreman knew that the 
accident and injury would occur, and could have 
known that the injury would occur by the ex- 
ercise of ordinary care; and the said foreman 
could have prevented the Injury by the exercise 
of proper care. Plaintiff says he requested the 
foreman to have the persons then pulling said 
car not to run same so fast and that the speed 
of same be lessened, but the said foreman re- 
fused to do so ; that if his request had been com- 
plied with the said accident and Injury would 
not have occurred." 

It will be seen that there Is an effort to 
charge and make the defendant responsible 
for the negligence of the other members of 
the crew, who, in conjunction with the plain- 
tiff, were operating the hand car at the time. 
It is further claimed, In substance, that the 
alleged foreman In charge of the hand car 
negligently and carelessly permitted the car 
to be run "too fast," and that he could have 
prevented this by the exercise of proper care, 
but that he failed and refused to do so, al- 
though plaintiff appealed to him to slacken 
the speed of the car, and warned him of the 
danger. The answer pat in issue all the al- 
legations of the petition, and In other para- 
graphs relied upon the contributory negli- 
gence of the plaintiff, and alleged that the 
Injuries to plaintiff, if any, were the result 
of the acts, negligent or otherwise, of bis 
colaborers and fellow servants. The an- 
swer was controverted of record, and upon 
trial there was a verdict in favor of plaintiff 
for |600, upon which judgment was render- 
ed, and to reverse which this appeal is prose- 
cuted. 



191 SOUTHWESTERN REPORTER 



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I/5UISVILLE 4 N. R CO. v. KIBBT 



115 



Several grounds are argued before us for 
a reversal, they being as follows: (1) Be- 
cause of a variance between the grounds for 
recovery alleged In the petition and the 
proof ; (2) because of failure of the court to 
give to the jury an Instruction offered by the 
defendant to return a verdict in its favor; 
(8) because the verdict is excessive and not 
sustained by the evidence ; (4) because of er- 
ror committed by the court in the admission 
and rejection of evidence before the jury; 
(5) because of error committed in the giving 
and refusing of instructions to the jury; 
<6) because of improper statements made by 
plaintiff's counsel in his closing argument to 
the jury. 

The argument of counsel for appellant on 
this appeal takes a very wide range, and dis- 
cusses at more or less length many collateral 
and incidental Questions which we will not 
attempt to follow or discuss in this opinion, 
confining ourselves to such of the points pre- 
sented as we deem necessary for a proper and 
concise consideration of them. 

[1] Preliminary to a consideration of the 
first ground urged it may be said that two 
rules of practice are long and firmly settled 
in this state. One is that in suits for neg- 
ligence if the negligence relied on is specified, 
the plaintiff will be confined in his proof to 
the establishment of the particular negli- 
gence alleged. Crane v. Congleton it Bro., 
116 S. W. 341 ; Monroe v. Standard Sanitary 
Mfg. Co., 141 Ky. 649, 138 S. W. 214; Burch 
v. Louisville Car Wheel & Railway Supply 
Co., 146 Ky. 272, 42 S. W. 414; Moreland's 
Adm'r v. Indian Refining Co, 146 Ky. 760, 
143 S. W. 395; Schilling v. Andrew Steel 
Co.. 144 Ky. 644, 139 S. W. 809; Soke's 
Adm'r v. Andrew Steel Co., 149 Ky. 627, 149 
S. w. 968 ; Palmer's Adm'r v. Empire Coal 
Co., 162 Ky. 132, 172 S. W. 97. 

[2] The other rule is that the proof must 
conform to the allegation. In other words, 
that allegation without proof and Its con- 
verse are neither sufficient to entitle the liti- 
gant to relief. Some of the cases applying 
this rule, in addition to the ones above re- 
ferred to, are McQuary v. L. A N. R R. Co., 
128 S. W. 330; Murray v. C. & O. R. R 
Co., 139 Ky. 383, 115 S. W. 821; Rowe v. L. 
A N. R. R. Co., 143 Ky. 826, 187 S. W. 611. 

[3] Some of the incompetent testimony 
complained of in this case is that given by 
certain witnesses for the plaintiff, to the ef- 
fect that those operating the hand car were 
negligently and carelessly jerking it, which 
caused the front end of the car upon which 
the plaintiff was riding to be lifted from 
the track, and that the derailment was in 
all probability, caused thereby. From the 
allegations of the petition It will be seen that 
no such negligence is relied on, as the only 
negligence alleged therein Is that the car 
was going too fast, and that the foreman in 
charge of it declined and refused to cause its 
speed to be reduced, and this even after 
plaintiff had requested him to do to. Clear- 



ly, under the rule supra, the evidence com- 
plained of was incompetent and was prej- 
udicial, because the testimony convinces us 
that the derailment of the car was almost 
necessarily due to the jerking of its propel- 
ling lever by the ones operating It, and not 
to the speed of the car. In other words, the 
negligence proven, if any, is not that which 
is alleged, but la, to say the least of it, a 
different negligence from that which is al- 
leged, and the testimony concerning it should 
have been excluded, not only upon the ground 
just considered, but because it was the neg- 
ligence of plaintiff's fellow servants, a point 
which we will hereinafter discuss. 

[4] The peremptory instruction offered by 
the defendant is Insisted upon mainly be- 
cause the negligence causing the derailment 
of the hand car and consequent injuries to 
the plaintiff was that of plaintiff's fellow 
servants, for which the defendant is not lia- 
ble. Under the fellow-servant doctrine as ap- 
plicable in this state, it cannot be reason- 
ably contended that the members of the crew 
assisting in the propelling of the hand car 
were not fellow servants of the plaintiff. 
They were all engaged In one common em- 
ployment and with one purpose In view, in 
the accomplishment of which there were no 
departments whereby one of them was su- 
perior to the other, nor was any of them 
vested with any authority to give directions 
to the plaintiff which be in any wise was 
compelled to obey, unless It be, as is insisted 
by him, that on the particular occasion Floyd 
had been vested with the power and author- 
ity of a sub, or straw, boss, as he is denom- 
inated. Upon this point plaintiff and an- 
other witness testified that Hicks, the gen- 
eral boss of the crew, designated Floyd for 
this particular trip to take charge of the 
hand car and members of the crew, and vest- 
ed him with authority to manage and con- 
duct it in making the particular trip in ques- 
tion. They furthermore testify that it was 
usual and customary to have a boss to per- 
form such duties, and that his position on the 
band car was a seat immediately over the 
brake attached to the car, that Floyd was 
occupying this position at that time, which 
he admits, and that when it became evident 
that the car was going to leave the track, 
Floyd applied the brakes, which plaintiff 
claims is a part of the duties of a foreman. 
He further testifies that he, as well as oth- 
er members of the crew, took their respective 
positions upon the car under the directions 
of Floyd. This testimony given by the plain- 
tiff and his witness is flatly contradicted 
by not only the other members of the crew 
who were upon the hand car at the time, 
but also by Hicks and a number of others, 
but we are not. prepared to say that there 
was not sufficient evidence to have submitted 
to the jury the question as to whether Floyd 
was at that time in fact a boss or vested 
with the authority of a superior over the 
plaintiff and other members of the crew who 



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116 

were at that time upon the hand car. This 
being true, It was not error to refuse to give 
the peremptory Instruction of which com- 
plaint Is made. 

In determining the question under consid- 
eration, we have not overlooked the Insist- 
ence made that the fact as to whether Floyd 
was foreman at the time Is not to be deter- 
mined by what plaintiff may have thought 
or what the former may have done, but we 
have considered only the testimony of plain- 
tiff and his witness to the effect that the fore- 
man, Hicks, had designated Floyd as foreman 
in charge of the car upon that occasion. 

[5] During the trial the defendant offered 
to prove by witnesses that the band car at 
the time was not being operated at a rate 
of speed beyond that which Is usual, ordi- 
nary, and customary upon such occasions, 
and especially upon the character of track 
over which it was then running. The testi- 
mony of plaintiff and some of his witnesses 
was that the car was being operated at a 
speed of between 12 and 14 miles per hour, 
while a greater number of witnesses for de- 
fendant testified that its speed did not ex- 
ceed 8 or 10 miles per hour. The allegation 
In the petition is that the car was being op- 
erated "too fast," and this same expression 
is used by the court in its Instructions, sub- 
mitting the question of defendant's negli- 
gence to the jury. As to what is or would 
be a speed which was "too fast" is nowhere 
alleged or proven. The only negligence with 
reference to the speed of the car which 
would, in any event, render the defendant 
guilty of negligence Is such speed as would 
be, not only careless, but reckless, unusual, 
and unnecessary, and what rate of speed 
would measure up to these designations is 
nowhere alleged or proven. The expression 
"too fast," found both in the pleading and 
Instruction, as well as the testimony, is too 
indefinite, and fixes no standard by which 
the rate of speed might be gauged. The speed 
may have been too fast for some purposes, 
and yet not fast enough for others. The de- 
fendant clearly had a right, even under the 
condition of the pleading, to show that the 
speed of the hand car did not exceed that 
which was permissible under the law, and 
Its offered testimony to this effect should 
have been admitted. 

In this connection, it might be well to say 
that plaintiff's pleading would conform much 
better to the established rules of practice 
If It had alleged that the speed of the hand 
car at the time complained of was of the 
character alluded to, and the instructions In 
submitting this question to the Jury should 
likewise conform to our above expressed 
views. 

[I] Instruction No. 4, defining fellow serv- 
ants, although correct, has no place In this 



(Ky. 

case, as all those who were on the band car 
at the time plaintiff received his injury un- 
der the undisputed facts were fellow serv- 
ants with him, unless one of them had been 
constituted his boss or superior In the man- 
ner claimed by plaintiff, and the trial court 
should have so assumed as a matter of law. 

[7] Instruction No. 6, which Is the one on 
the measurement of damages, permitted a 
recovery by plaintiff, not only for loss of 
time, but for the impairment of his power 
to earn money without directing that the 
allowance for this Impairment of his power 
to earn money should begin when his loss 
of time resulting from his disability ends. 
The failure to do this has many times been 
condemned by this court and the error so 
committed held to be sufficiently prejudicial 
to Justify a reversal of the Judgment. Blue 
Grass Traction Co. v. Ingles, 140 Ky. 488, 
131 S. W. 278; L 4 N. E. B. Co. t. Harrod, 
115 Ky. 877, 75 S. W. 233, 25 Ky. Law Rep. 
250; McHenry Coal Co. v. Taylor, 165 Ky. 
144, 176 S. W. 076; N. C. 4 St L R. Co. v. 
Banks, 168 Ky. 579, 182 S. W. 660. The de- 
fendant submitted an instruction complying 
with the rule announced in the above cases, 
which was refused, and to which exceptions 
were taken. 

inasmuch as the case will have to be re- 
versed, we express no opinion In regard to 
the alleged excesslveness of the verdict. On 
another trial the facts upon this point may 
be entirely different, justifying a different 
finding by the jury. 

Summarizing, we hold that the only neg- 
ligence alleged and attempted to be proven 
authorizing a recovery Is the unreasonable, 
unusual, and unnecessary speed of the hand 
car at the time of the accident, and the neg- 
ligent failure and refusal of the temporary 
or straw boss, Floyd, to reduce or control 
It If he could, especially after plaintiff's re- 
quest for him to do so. The supposed negli- 
gence of the members of the crew operating 
the car by Jerking the lever. If negligence at 
all, cannot be relied on under the state of 
the pleadings. The plaintiff cannot, in any 
event, recover for any act of negligence of 
his fellow servants upon the hand car, un- 
less there was also on it a superior or boss 
whose duty It was to prevent, and who could 
have prevented, such negligence of plaintiff's 
fellow servants, and he by his gross negli- 
gence refused to do so and such refusal was 
the proximate cause of plaintiff's Injury. 
Under the present condition of the pleadings, 
no evidence except that having a legal tend- 
ency to establish the grounds for recovery 
just considered should be admitted, and the 
Instructions should be confined to the sub- 
mission to the Jury of such issues alone. 

Wherefore the judgment Is reversed for 
proceedings consistent with this opinion. 



101 SOUTHWESTERN REPORTER 



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Ky.) 



JOHNSON T. TACKITT 



117 



JOHNSON t. TAOKITT. 
(Court of Appeals of Kentucky. Jan. 23, 1917.) 

1. Evidence «=>450(5) — Parol Evidence — 
Ambiguous Contract. 

A contract as to driving logs "now in Long 
fork or that may be put into said creek" by a 
certain time is ambiguous as to whether or not 
including tributaries of the creek, so as to ad- 
mit of parol evidence of what the parties had 
in contemplation in that respect. 

[Ed. Note.— For other cases, see Evidence, 
Cent Dig. i 2071; Dec. Dig. «=>450(5).] 

2. Evidence o}=»442(4) — Pabol Evidence — 
Contradicting Teems or Contract. 

A contract as to driving logB then in a creek 
or that may be put into it by a certain time by 
its express terms limits its application to an 
indefinite number of logs; so that it cannot be 
shown by parol that there was an agreement 
to put a definite number of logs into the creek. 

[Ed. Note. — For other cases, see Evidence, 
Cent. Dig. 5 1884; Dec. Dig. <8=»442(4).] 

3. Logs and Logging «=»15(2) — Contract 
fob Driving— Provision fob 'Payments. 

Under provision of contract for driving logs 
that payments shall be made at 25 cents a log 
as delivered "on estimates agreed on," plaintiff 
is not entitled to a settlement and payment on 
demand for the exact number of logs that have 
been at any time delivered, nor is defendant en- 
titled to withhold all payments till the contract 
is completed, when a controversy arises on the 
estimates of what has been delivered ; but plain- 
tiff is then entitled to payment to the extent 
that defendant admits in his estimate that he 
is indebted. 

[Ed. Note.— For other cases, see Logs and 
Logging. Cent. Dig. | 42; Dec. Dig. «J=»15(2).] 

4. Contracts «j=>319(1)— Breach— Bight of 
Recovery. 

Where defendant breaches the contract by 
refusing to make payments during the progress 
of the work, whereby plaintiff is prevented from 
carrying out the contract, plaintiff may elect to 
sue for a breach, and recover on the contract, 
bo far as he has performed, as well aa for loss 
of profits, or he may waive the contract, and 
sue on quantum meruit. 

[Ed. Note.— For other cases, see Contracts, 
Cent Dig. §f 1476, 1493; Dec. Dig. <8=»S19(1).] 

5. Wobk and Labor <S=»14(3)— Part Per- 
formance of Contract. 

Though breach of the contract, when plain- 
tiff quit it before completion, was his, yet his 
work done having been accepted by, and bene- 
ficial to, defendant, he could recover therefor on 
a quantum meruit, subject to defendant's right 
to damages for the breach. 

[Ed- Note. — For other cases,' see Work and 
Labor, Cent Dig. §{ 30, 33; Dec. Dig. <S=> 
14(3).] 

6. Contracts ©==323(1) — Bbeacdbi — Question 
fob Jubt. 

Who breached the contract fa on conflicting 
evidence a question for the jury. 

[Ed. Note.— For other cases, see Contracts, 
Cent Dig. S 1827%; Dec. Dig. <8=>323(1).] 

7. Trial «=> 252(12) — Instructions — Ap- 
plicability to Evidence. 

An instruction authorizing damages for use 
of an article for purpose other than permitted 
by the contract should not be given; there be- 
ing no evidence of such use. 

[Ed. Note.— For other cases, see Trial, Cent. 
Dig. i 004; Dec. Dig. <8=252(12).] 



8. Witnesses «=»1S0(1)— OoMPHnwoY— Acts 
and Omissions of Deceased. 
By express provision of Civ. Code Prac. ( 
606, subsec. 2, a person may not testify for 
himself concerning acts done or omitted by 
deceased. 

[Ed. Note.— For other cases, see Witnesses, 
Cent Dig. S| 629, 664, 666; Dec. Dig. «=» 

Appeal from Circuit Court, Pike County. 

Action by Sol Tackitt against Mary J. 
Johnson, administratrix. Judgment for 
plaintiff, and defendant appeals. Reversed, 
and remanded for new trial 

Boscoe Vanover, of Pikeville, for appellant 
J. S. Cline and Childers 4 Childers, all of 
Pikeville, for appellee. 

CLARKE, J. On March 7, 1912, W. B. 
Johnson and Sol Tackitt entered into the fol- 
lowing written contract: 

"Hartley, Kentucky, 3/7/1912, 

"I, W. B. Johnson, has this sold to 

Sol Tackitt one job of drifting all the logs of 
Cole & Crane that is now in Long fork or that 
may be put into said creek by January 1, 1913. 
All logs to be put where the back water will 
float logs easily above forks in pond. Said logs 
to be delivered below mouth or out into chan- 
nel of Main Shelby creek for (251) cents per 
log. Said logs to be delivered by August 1, 
1913. Said payments to be made as logs is de- 
livered as above on estimates agreed on. Sol 
Tackitt is to have the nse of splash dams during 
said time to splash said timber. W. B. John- 
son reserves the right to use splash dams when 
Sol Tackitt fa not operating said dams on Long 
fork. [Signed] W. B. Johnson. 

"Sol Tackitt." 
On April 5, 1912, so much of this contract 
as refers to the splash dam was modified 
by the following written contract: 

"Hartley, Kentucky, April 5, 1912 
"Tkis agreement made and entered into by and 
between W. B. Johnson, party of the first part, 
and Sol Tackitt and G. W. Tackitt, party of 
the second part, witnesseth that said W. B. 
Johnson releases and relinquishes all claims, 
rights, interests, and title he or Cole & Crane 
has in and to the splash dam at said G. W. 
Tackitt's from this date for the said Tackitt 
to repair said dam and to make a county road 
by said dam in good workman order. Said Sol 
Tackitt and G. W. Tackitt discharges the said 
W. B. Johnson and Cole & Crane from all dam- 
ages, claims, demands, actions, causes of action 
by reason of said splash dam. Should the said 
Sol Tackitt refuse to deliver Cole & Crane Iors 
set out in contract between himself and W. B. 
Johnson, of date March 7, 1912, then in said 
event the said W. B. Johnson may proceed and 
operate said dam for splashing said logs only. 

,! W. B. Johnson. 

"Sol Tackitt. 

"G. W. Tackitt. 

"Attest: 

"Grant Tackitt." 

Tackitt worked under these contracts un- 
til in January, 1913, when he quit, having 
drifted out and delivered about 3,195 logs, 
and not having drifted out or delivered 
about 1,800 logs that were In Long fork and 
its tributaries. After Tackitt quit the job, 
Johnson employed bands and drifted out tbe 
logs Tackitt had left, using the splash dam 
referred to in the contracts in so doing. 



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118 

On March 28, 1913, Tackltt brought this ac- 
tion against Johnson, alleging a breach of 
the contract by Johnson which prevented him 
from completing the contract, and seeking to 
recover the sum of $500 for logs which he 
had delivered and for which be had not been 
paid, the farther sum of $440 for profits 
which he alleged he could have made under 
the contract for delivering logs which he al- 
leged Johnson wrongfully withheld and fail- 
ed to put into Long fork according to the con- 
tract, and the further sum of $200 for the 
wrongful taking and converting to his own 
use by Johnson of the splash dam referred to 
'in the contracts. 

Johnson by his answer traversed all of the 
allegations of the petition, except the execu- 
tion of the contract, and, by counterclaim, 
alleged a breach of the contract by Tackltt, 
and sought to recover of him the sum of $1,- 
600 damages therefor. Before the trial 
Johnson died, and the action was revived in 
the name of his administratrix. Upon a trial 
by jury a verdict was rendered in favor of 
Tackltt for the sum of $1,000, and to re- 
verse the judgment rendered thereon this ap- 
peal Is prosecuted. 

Appellant seeks a reversal because of alleg- 
ed errors of the trial court in admitting in- 
competent evidence, in overruling her mo- 
tion for a peremptory instruction, in the in- 
structions given, and upon the ground that 
the verdict is against the evidence. 

[1,2] Before taking up these alleged er- 
rors, it will be necessary, first, to consider 
some preliminary questions with reference to 
the contract of March 7, 1912. It is Insisted 
by appellee that the contract is Indefinite and 
ambiguous as to the logs covered by it, 
which are described therein as "all the logs 
of Cole ft Crane that Is now In Long fork or 
that may be put Into said creek by January 
1, 1913." Appellee contends that by the par- 
ties this clause was meant to Include, not only 
Long fork of Shelby creek, but several of its 
tributaries, and that by the latter part of 
this provision, "or that may be put into said 
creek by January 1, 1913," Johnson was obli- 
gated to put into said creek and its tributa- 
ries between 6,500 and 7,000 logs. Appellant 
insists that none of the logs in the tribu- 
taries of Long fork were Included in the con- 
tract, that no definite number of logs were to 
be put in the creek, and that the contract is 
not ambiguous or indefinite. 

The principle Is settled that, when a writ- 
ten contract is ambiguous in its terms, parol 
evidence may be introduced to show what 
the parties had in contemplation by the lan- 
guage used (10 R. C L. 1066 ; Jenkins v. Bass. 
88 Ky. 397, 11 8. W. 293, 21 Am. St Bep. 344, 
10 Ky. Law Bep. 987), but that neither parol 
evidence nor preliminary negotiations can be 
allowed to contradict or vary the terms of 
the contract (SB. QL 839). 

As to whether this contract applied only to 
the logs on Long fork or to those In its trlbu- 



(Ky. 

tarles, as well, the contract Is ambiguous and 
indefinite, for it may be construed either way, 
and parol evidence was competent to explain 
it; but to attempt to show by parol evidence 
that by this provision of the contract the 
parties had a definite number of logs in con- 
templation, and that by the contract Johnson 
had obligated himself to place in the creek 
a definite number of logs, would be to permit 
one party, by parol evidence and evidence of 
preliminary negotiations, to introduce into it 
a warranty where none whatever exists, 
which is contrary to the rule. It is plain 
that the parties did not mean any certain 
number of logs, but that the contract, by Its 
express terms, limits its application to the 
logs then in the creek and an indefinite num- 
ber of logs that might be put therein by 
January 1, 1913. Clearly this was not a 
warranty upon Johnson's part to put any cer- 
tain number of logs In the creek by that time, 
and such a warranty cannot be placed in the 
contract by parol evidence, and all evidence 
introduced to that effect was clearly Incom- 
petent 

[3-6] Another provision of the contract re- 
quiring consideration is that with reference 
to the payments to be made as the work pro- 
gressed. The contract provides that pay- 
ments are to be made at 26 cents per log as 
delivered, on "estimates agreed on." It does 
not provide, as appellee seems to nave con- 
ceived and insisted upon, for a settlement and 
payment upon demand for the exact number 
of logs that had at any time been delivered, 
nor was Johnson authorised to withhold pay- 
ments until the contract was completed, when 
a controversy arose upon the estimates of 
what had been delivered; but appellee had 
the right to insist upon payments to the ex- 
tent that Johnson admitted in his estimate 
of the work done that he was indebted to the 
appellee, and if Johnson refused to make 
such payments and appellee was thereby pre- 
vented from carrying out his contract as he 
alleges, he then had the right to elect to sue 
for a breach and recover on the contract so 
far as he bad performed, as well as for loss 
of profits, or he could have waived the con- 
tract and sued upon a quantum meruit 7 
Am. ft Eng. Encyc. of Law, 153; 6B.C.L. 
1012, 1031; Marshall v. Craig, 1 Bibb, 379, 4 
Am. Dec. 647; Rankin v. Darnell, 11 B. 
Mon. 30, 62 Am. Dec. 557; Parrot v. Mexi- 
can Central K. R. Co., 207 Mass. 184, 93 N. 
B. 690, 34 L. R A. (N. S.) 261; 9 Cyc 688; 
Madison-Jackson-Estill Lumber Co. v. Coyle, 
166 Ky. 108, 178 S. W. 1170; Eddlngton-Grlf- 
fltts C. Co. v. Ireland, 166 Ky. 618, 177 S. W. 
259. And even though the breach were ap- 
pellee's since his work had been accepted by 
and was beneficial to appellant he could .re- 
cover upon a quantum meruit subject to ap- 
pellant's right to recover damages, as as- 
serted in her counterclaim, for appellee's 
breach. 9 Cyc. 645 ; Escott ft Son v. White, 



191 SOUTHWESTERN REPORTER 



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McCREART OOTJNTY v. BRYANT 



119 



10 Bush. 169; Tandy's Assignee v. Hatcher & 
Co., 9 Ky. Law Rep. 160. 

[8] While appellee admits he quit the con- 
tract before completion, he attempts, in Justi- 
fication, to prove that by Johnson's failure to 
pay during the progress of the work upon es- 
timates he was prevented from carrying out 
his contract, and to support this contention 
there is some evidence, but there was also 
evidence to the effect that Johnson not only 
did not refuse to pay according to the con- 
tract, but that be offered, and appellee re- 
fused to accept, all that, under the contract, 
was due, that is, for so much of the work ap- 
pellee claimed to have done as was conceded 
by Johnson. 

It was therefore a question for the Jury to 
decide who breached the contract; and upon 
their decision of this question depended ap- 
pellee's right to recover upon each of the 
three items for which he sued, as well as 
appellant's right to recover upon her counter- 
claim. 

1. The evidence having shown that ap- 
pellee had performed services under the con- 
tract which had been accepted by Johnson 
and for which no payment had been made, 
appellant was not entitled to a peremptory 
instruction. 

2. Instruction No. 1 given by the court over 
the objection of the defendant authorized the 
jury to find for the plaintiff, under the con- 
tract, for such logs as had been delivered, 
at the contract price, without regard to 
whether the breach of the contract was made 
by the plaintiff or the defendant This was 
error, since plaintiff's right to recover upon 
the contract was dependent upon a breach 
by the defendant, whereas, as we have point- 
ed out, if the breach was plaintiff's, he was 
not entitled to recover on the contract, but 
upon a quantum meruit 

By the second Instruction the jury were 
authorized to find for the plaintiff for lost 
profits, If he was prevented from carrying 
out the contract by reason of the failure 
of Johnson to pay according to the contract 
for such logs as the jury believed from the 
evidence Johnson was obligated to put into 
the creek, and which he did not put therein. 
This instruction was erroneous, in that it 
authorized a finding for plaintiff for logs 
that were never put in the creek, upon the 
theory that by the contract Johnson was 
obligated to place in the creek a definite num- 
ber of logs, which, as we have heretofore 
pointed out the contract did not authorize; 
and the instruction should have informed 
the jury what payments, under the contract, 
appellee was entitled to demand, as herein 
indicated. 

[7] 3. By instruction No. 3, to the giving 
of which appellant objected and excepted, 
the Jury were instructed to find for the plain- 
tiff damages for the use of the splash dam 
by Johnson, after plaintiff abandoned the 



contract in drifting out logs not covered by 
the contract. There was no evidence what- 
ever that Johnson used the dam to drift out 
any logs, other than those specified in the 
contract or in any way, except as the con- 
tract authorized, and therefore this instruc- 
tion should not have been given. And since 
the jury found for the plaintiff in the sum of 
$1,000, It Is apparent that they found for 
him under each of these instructions, since 
the amount awarded is more than the sum 
of any two of these items; and, as there was 
no evidence of damage by reason of the use 
of the splash dam, the verdict is contrary 
to and not supported by the evidence, for 
which reasons the judgment must be reversed. 

[t] 4. We do not deem it necessary to con- 
sider in detail the competency of those por- 
tions of appellee's testimony, admitted over 
the objections of appellant, and to which ob- 
jections are urged here, or to do more than 
call attention to the fact that subsection 2 
of section 606 of the Civil Code forbids a per- 
son from testifying for himself, not only con- 
cerning any verbal statements of a person 
who is dead when the testimony is given, 
but also concerning a transaction with or act 
done or omitted to be done by such decedent 
While appellee was not permitted to testify 
concerning conversations with decedent, 
Johnson, he was permitted, over appellant's 
objection, to testify concerning acts done and 
omitted by the decedent; and upon another 
trial such evidence should be excluded. 

For the reasons indicated, the judgment is 
reversed, and the cause remanded for another 
trial consistent herewith. 



McCREART COUNTY v. BRYANT, County 

Treasurer, et aL 
(Court of Appeals of Kentucky' Jan. 23, 1917.) 
1. Stipulations <8=>14(1) — RiiRSTAixitiifT 
or Iiwunotiom. 
Civ. Code Prac. I 296, provides that if the 
plaintiff desires to apply for a reinstatement of 
an injunction dissolved or modified on motion, 
the court or judge shall make an order of dis- 
solution to take effect in a reasonable time there- 
after, not exceeding 20 days, and shall express 
in the order that the plaintiff has leave to ap- 
ply in the meantime for a reinstatement of the 
injunction. Section 207 provides that a judge 
of the Court of Appeals, if the plaintiff has se- 
cured the right to apply for a reinstatement of 
an injunction, may, upon a presentation of a 
copy of the record including the evidence read 
or offered, upon the motion to dissolve or modi- 
fy the injunction, reinstate the same in whole 
or in part, if the order of reinstatement be filed 
within the time limited. Held that where a 
motion to reinstate an injunction was made 9 
days after the order of dissolution, but by oral 
agreement of counsel, consented to by the judge, 
the hearing and disposition of the motion was 
postponed, such agreement was binding upon the 
parties, and the motion, though not filed in the 
clerk's office until after the expiration of 30 
days, would have the same effect as if filed in 
time. 

[Ed. Note. — For other cases, see Stipulations, 
Cent. Dig. {§ 24, 28; Dec. Dig. «=>14(1).] 



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191 SOUTHWESTBBN REPORTER 



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2. Mandamus <8=»42— Reinstatement of In- 
junction—Mandatory Statute. 
While the right of a plaintiff under Civ. 
Code Prac. § 296, to apply for reinstatement of 
an injunction dissolved or modified on motion is 
optional, the provision requiring the court at 
the plaintiff's request to make an order of dis- 
solution to take effect a reasonable time there- 
after, not exceeding 20 days, is mandatory, and 
upon the failure or refusal of the court or judge 
to grant the request plaintiff may secure from 
the Court of Appeals a mandamus requiring 
the court or judge to give the time provided tor 
in the Code. 

[Ed. Note.— For other cases, see Mandamus, 
Cent. Dig. g 87: Dec. Dig. €=»42.] 

8. Injunction *=»176— Dissolution— Obdee 
— Conclusiveness— Motion to Reinstate— 
Affidavit. 
An order of the circuit judge under author- 
ity of the Code dissolving a temporary injunc- 
tion cannot be altered, modified, or controvert- 
ed by an affidavit of the plaintiff that the court 
had refused its request made under Civ. Code 
Prac S 296, for an allowance of time in which 
to move for a reinstatement of the injunction. 

[Ed. Note.— For other cases, see Injunction, 
Cent Dig. §§ 389, 896; Dec. Dig. <S=»176.] 

4. Injunction *=»183— Dissolution— Rein- 
statement by Codbt of Appeals. 
As Civ. Code Prac. ( 297, gives the judge of 
the Court of Appeals authority to reinstate 
an injunction if the plaintiff has secured the 
right to apply for its reinstatement, in the ab- 
sence of an order made by the circuit court or 
judge giving time in which to apply to the 
Court' of Appeals for the reinstatement of the 
injunction, a judge of the Court of Appeals has 
no authority to reinstate it, but must presume 
that time was not requested. 

[Ed. Note. — For other cases, see Injunction, 
Cent. Dig. | 394; Dec. Dig. <8=183.] 

Action by McCreary County, on the relation 
of G. W. Stephens, as County Attorney, 
against W. A. Bryant, County Treasurer, and 
others. On motion to reinstate an Injunction. 
Motion overruled. 

W. R> Cress, of Monticello, and G. W. Ste- 
phens, of Whitley City, for plaintiff. John 
W. Hawlings, of Danville, John W. Campbell, 
of Louisville, and L. G. Campbell, of Whitley 
City, for defendants. 

CARROLL, J. G. Wl Stephens, as county 
attorney of McCreary county, and in the 
name of the county, brought in the McCreary 
circuit court his petition in equity against 
W. A. Bryant, county treasurer of McCreary 
county, Walker, the county clerk, Williams, 
the county judge, and Moore, Anderson, Rob- 
erts, Shepherd, Keith, and Richardson, the 
magistrates of the county, who, in connec- 
tion with the county judge, compose the 
fiscal court, and against certain banks and 
manufacturing companies. In the petition it 
was sought to enjoin certain alleged unlaw- 
ful and unauthorized acts of the defendants 
as officers of the county In relation to the 
public funds of the county, and to restrain 
them from paying any of the claims specified 
in the petition, or from issuing or authorizing 
to be issued any warrants or vouchers drawn 
on the county treasurer, or from Incurring 



any future obligations on account of the road 
or bridge fund of the county. 

Notice was executed on Bryant, the treas- 
urer, Walker, the clerk, Williams, the coun- 
ty judge, and Moore, Roberts, Anderson, 
Keith, and Shepherd, .magistrates, on No- 
vember 28, 1916, that on November 29, 1916, 
at about the hour of 10 o'clock a. m., at the 
office of the circuit clerk in McCreary county, 
In the courthouse, In the town of Whitley 
City, the plaintiff would ask W. B. Creek- 
more, the circuit clerk, to grant an injunction 
against them and each of them as officers 
and members of the McCreary county fiscal 
court to enjoin them from doing the things 
specified in the notice, and which were also 
set out In the petition. 

This notice, although not executed on all 
of the defendants, was executed on those 
whose action If restrained would accomplish 
every purpose that the petition intended. 

At the time and place named in the no- 
tice the circuit clerk (Oreekmore), in an or- 
der, after reciting that: 

"This day came the plaintiff, McCreary Coun- 
ty, Ky., upon the relation of G. W. Stephens, 
county attorney for said county, and filed his 
verified petition in equity together with a no- 
tice of a motion for an injunction to be made 
at this time before the undersigned, as clerk 
of this court, and made a motion against the 
defendants hereinafter named for an order of 
injunction in accordance with said notice and 
with the prayer in said verified petition, and It 
appearing to the undersigned clerk of said 
court from the petition, which is verified, and 
from other proof therewith filed, that the plain- 
tiff is entitled to the relief sought" 

— issued an order of injunction In accordance 
with the prayer of the petition, specifying In 
the order that It should become effective 
when the plaintiff had executed in the of- 
fice of the clerk a bond executed as required 
by law in the penal sum of $500. 

On December 1, 1916, all the defendants In 
the petition by their attorneys, Messrs. Camp- 
bell, Sampson, and Rawllngs, joined in a no- 
tice executed on Stephens, the county attor- 
ney, that they would on December 7, 1916, 
before the Judge of the McCreary circuit 
court, at the courthouse in Williamsburg, 
Ky., enter their motion and move the judge 
to dissolve the temporary restraining order 
granted by the clerk of the McCreary circuit 
court On December 7th the parties appeared 
before the judge of the McCreary circuit 
court, at Williamsburg, Ky., at the time nam- 
ed In the notice, and made the following mo- 
tion: 

"The defendants, W. A. Bryant treasurer, 
McCreary county, G. C. Walker, county clerk. 
J. E. Williams, county judge, J. C. Anderson, 
J. M. Shenerd, Thomas Moore, Logan Keith, 
Elisha Roberts, and J. S. Richardson, justices 
of the peace and members of the McCreary 
county fiscal court, now come and move and 
pray the court to dissolve and discharge the tem- 
porary injunction awarded the plaintiff by W. 
B. Creekmore, the clerk of the McCreary cir- 
cuit court, on the 29th day of November, 1916." 

Thereupon the judge made the following; 

order: 



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Mccreary county t. bbyant 



121 



"This cause was submitted to the court upon 
a motion entered at motion hour in the circuit 
courtroom of the courthouse in Williamsburg, 
Ky., at 9 o'clock Thursday morning, December 
7, 1816, by the defendants to discharge, set 
aside and dissolve the temporary restraining or- 
der granted by the clerk of the McCreary cir- 
cuit court in vacation and also upon motion of 
the plaintiff for a perpetual injunction. The 
court heard the argument of counsel on both 
sides, and after having read the record, includ- 
ing the petition, demurrer, answer and affidavits 
filed, is of opinion and orders and adjudges that 
the motion of the defendants to discharge, set 
aside and dissolve the temporary restraining 
order granted by the plaintiff be and the same 
is sustained, and the said temporary restraining 
order is now and hereby set aside and dissolved 
and the plaintiff's motion for a perpetual in- 
junction is now and hereby overruled, to which 
ruling of the court the plaintiff objects and ex- 
cepts and prays an appeal to the Court of Ap- 
peals, which is granted." 

There is also in the record an affidavit sub- 
scribed and sworn to by G. W. Stephens, 
county attorney, on December 26th, to which 
Is attached the order made by the judge. 
This affidavit, after setting out that the or- 
der was drawn by the judge on his own mo- 
tion, reads: 

"Affiant says that said motion was heard at 
Williamsburg, and that after said judge had 
rendered a decision, he mailed a copy of same 
to affiant at Whitley City, Ky., where said suit 
was pending; that as soon as affiant received 
said copy, he telephoned said judge at Williams- 
burg to correct said order; that said judge prom- 
ised to correct said order to correspond with 
the law and facts in said case by striking out 
the part that pertains to the motion of plain- 
tiff for a permanent injunction, and by allow- 
ing plaintiff twenty days in which to have said 
injunction reinstated by the Court of Appeals; 
that since that time the said judge held a term 
of court at Whitley City, and affiant then and 
there asked said judge to make the proper or- 
der in said case ; that said judge is now gone 
from Whitley City and McCreary county, and 
affiant could not get said order and now knows 
of no way in which he can obtain said order in 
time to file same in the record herein. 

"Affiant says that no motion has been made in 
behalf of plaintiff in any instance asking for a 
permanent injunction herein; that no relief of 
any kind has been asked by plaintiff after it 
obtained the injunction from the said clerk. 

"Affiant says that so much of said order as 
says that plaintiff made a motion for a perma- 
nent injunction is false, and that plaintiff has 
used due diligence to obtain the proper order, 
and that the said judge will not give said or- 
der, although he repeatedly promised to do so." 

On December 14, 1916, Stephens, as county 
attorney, Jn connection with W. R. Cress, of 
counsel, served a notice on the defendants, 
Bryant and others, that the plaintiffs would 
on Saturday, December 16, 1916, at about 
the hoar of 11 o'clock a. m., in chambers at 
the capitol building, Frankfort, Ky., move 
Hon. Bollin Hart, one of the judges of the 
Kentucky Court of Appeals, to reinstate the 
injunction granted by W. B. Creekmore, clerk 
of the McCreary circuit court, and dissolved 
upon notice and motion made before the 
regular judge of the McCreary circuit court 
On December 16th Stephens and Cress, rep- 
resenting the plaintiff In the salt, and Camp- 
bell, Sampson, and Bawlings, representing 



the defendants in the suit, appeared together 
in the capitol building, and Judge Hurt being 
absent from the city, It was agreed by 
counsel that I might bear and dispose of the 
Injunction In his place. It was farther 
agreed by the attorneys on both sides of the 
case, after consultation partly between them- 
selves and partly In my presence, that owing 
to the Importance of the questions Involved, 
the hearing and disposition of the motion by 
me might be postponed until some time In 
January when other members of the court 
could be present and assist me In disposing 
of the motion. It was farther agreed by 
these attorneys, in my presence, that they 
would take home the paper they had brought 
with them and brief the case, and then re- 
tarn to me the papers and tbe briefs. No 
time was fixed when the papers and briefs 
should be returned to me, as It was under- 
stood and agreed by the attorneys that they 
would return to me the papers as soon after 
January 1st as was convenient 

On January 12, 1917, the papers in the 
case, together with briefs prepared by coun- 
sel representing the plaintiff as well as the 
defendants, were received by me m the mail. 
Accompanying the papers so received was 
a notice signed by Campbell, Sampson, and 
Bawlings, attorneys, stating that: 

"On Friday, January 12, 1917, at 11 o'clock a. 
m., or as soon thereafter as may be, in the court- 
room of the Kentucky Court of Appeals at the 
capitol in Frankfort, Ky., the appellees will 
move the court to dismiss the appeal and pro- 
ceedings of the appellant herein to reinstate 
the temporary restraining order, or temporary 
injunction granted by W. B. Creekmore, circuit 
clerk of McCreary county, on the 29th day of 
November, 1916, and dissolved on the 7th day 
of December, 1916, because the record and 
application for reinstatement were not filed in 
the time required by law." 

Accompanying this notice I find the fol- 
lowing motion: 

"Now come the appellees, W. A. Bryant, etc., 
and move the court to dismiss the appeal and 
proceedings of the appellant herein seeking to 
reinstate the temporary restraining order ; and 
for cause say that the record and application for 
reinstatement were not filed in the time required 
by law, and that this proceeding is not warrant- 
ed by the Code, | 296." 

In support of the notice and motion to dis- 
miss the motion to reinstate the injunction 
because the record and application for rein- 
statement were not filed within the time re- 
quired by law, the attorneys, Campbell, 
Sampson, and Bawlings, in their brief say: 

"We further insist that this case cannot now 
be heard because the appellant moving for the 
reinstatement herein has failed to present his 
record within the twenty dayB allowed by law for 
making such motions, and the motion must be 
denied for. said reasons." 

I am not disposed to pass this motion to 
dismiss without comment, and am greatly 
surprised that the attorneys should make a 
motion like this in view of the agreement 
made between myself and counsel as hereto- 
fore set out It is true that section 296 of 
the Code provides that: 



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122 



181 SOUTHWESTERN REPORTER 



"If the plaintiff desire to apply for a rein- 
statement of an injunction dissolved or modified, 
on motion, the court or judge shall make the 
order of dissolution to take effect in a reasonable 
time thereafter, not exceeding twenty days, and 
shall express in the order that the plaintiff has 
leave to apply in the meantime for a reinstate- 
ment of the injunction." 

And it is further provided in section 297 : 
"A judge of the Court of Appeals, if the plain- 
tiff have secured the right to apply for a rein- 
statement of an injunction, • * * may, upon 
a presentation of a copy of the record, including 
the evidence read or offered to be read, upon the 
motion to dissolve or modify the injunction, rein- 
state the same in whole or in part. • * * If 
the order of reinstatement be filed in the clerk's 
office in the time limited as provided in section 
296. subsection 1, the injunction, as reinstated, 
shall be obeyed, otherwise the order of dissolu- 
tion or modification shall take effect." 

Under these sections of the Code, if the 
plaintiff desire to apply for a reinstatement 
of an Injunction, the court or judge shall 
make the order of dissolution to take effect 
within 20 days, and in the order give the 
plaintiff that period of time in which to apply 
for a reinstatement of the injunction. And 
if the order of Injunction is reinstated by a 
judge of the Court of Appeals, in the order of 
reinstatement in the absence of an agreement 
extending the time must be filed In the clerk's 
office within 20 days, or if not the order of 
dissolution shall be in effect 

The injunction in this case was dissolved 
by the judge of the McCreary circuit court 
on December 7th, and the motion .o reinstate 
it was made before me on December 16th, 9 
days after the order of dissolution was made, 
but by agreement of the attorneys, consented 
to by me, the hearing and disposition of the 
motion was postponed until January, which 
of course would postpone the hearing and 
disposition of it more than 20 days from the 
date of the dissolution order made by the 
judge and consequently make it impossible to 
file in the clerk's office within 20 days from 
December 7th the order of reinstatement, if 
such an order were made. 

[1] These Code provisions, in the absence 
of an agreement between counsel, are con- 
trolling, and If the order made by a judge of 
the Court of Appeals reinstating, modifying, 
or dissolving the injunction, as the case may 
be, be not filed in the clerk's office of the 
circuit court within 20 days from the date 
of the order made by the circuit judge, his 
order will stand as made. But it often hap- 
pens that counsel are not prepared to submit 
to a judge of the Court of Appeals within the 
20 days the motion to dissolve, modify, or 
reinstate the injunction, and it also often 
happens that the Judge of the Court of Ap- 
peals before whom the motion is made within 
20 days cannot dispose of it before the expi- 
ration of 20 days, and whenever one of these 
contingencies has arisen, viz. that the attor- 
neys were not prepared to submit the motion 
within the 20 days, or the judge of the Court 
of Appeals was not prepared to dispose of the 
motion within the 20 days, the attorneys have 



uniformly agreed that the order made by 
the Judge of the Court of Appeals, although 
not filed in the clerk's office until after the 
expiration of 20 days, should have the same 
force and effect as if filed within the 20 days. 
Nor will the attorneys in this case be per- 
mitted by a violation of their agreement made 
in my presence to defeat the right of the plain- 
tiff to have his motion heard and disposed of. 

It is true that the agreement between coun- 
sel representing these parties was not in writ- 
ing, nor was it necessary that It should have 
been. The attorneys had the undoubted right 
to make the verbal agreement which they did 
make, and this verbal agreement is as binding 
on them as if it had been reduced to writing. 

Passing this, it will be observed that the 
Judge in his order set aside and dissolved 
what be designated as the temporary restrain- 
ing order granted the plaintiff, and that he 
also overruled a motion made by the plaintiff 
for a perpetual injunction, further reciting in 
the order that the plaintiff objected and ex- 
cepted "and prays an appeal to the Court of 
Appeals, which is granted." But at no place 
in the order do I find that the judge gave the 
plaintiff 20 days, or any time, in which to ap- 
ply to a judge of this court for a reinstate- 
ment of the injunction. This condition of the 
order makes it necessary that I should deter- 
mine whether it is necessary, to enable a 
plaintiff to apply to a judge of this court for 
a reinstatement of an injunction dissolved by 
a circuit Judge, that the order of dissolution 
should give not exceeding 20 days in which to 
apply for its reinstatement 

[2] Turning again to section 296 of the 
Code I find that it Is optional with the plain- 
tiff to ask time in which to apply for a rein- 
statement of the Injunction, as he may, if he 
chooses, let the matter rest with the order of 
dissolution made by the judge. But if the 
plaintiff does desire to apply for a reinstate- 
ment of the Injunction, then "the court or 
judge shall make the order of dissolution to 
take effect In a reasonable time thereafter, not 
exceeding 20 days, and shall express in the or- 
der that the plaintiff has leave to apply in 
the meantime, for a reinstatement of the in- 
junction." It will thus be seen that it is the 
mandatory duty of the court or judge dissolv- 
ing the injunction to give time for its rein- 
statement if such time is requested or de- 
sired. The court or judge has no discretion 
as to this. It is a right given to the plaintiff 
by the Code of which he cannot be deprived 
by the arbitrary action of the court or judge. 

Bnt If the court or judge should fail or 
refuse upon request made to give the time 
asked for, the party wishing to apply for a 
reinstatement of the Injunction Is not with- 
out his remedy, as he may secure from this 
court a mandamus requiring the court or 
Judge to give the time provided for in the 
Code. Louisville Industrial School of Re- 
form ▼. City of Louisville, 88 Ky. 884, 11 & 



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Ky.) 



HOLLOWELL r. JOB K. EXALL A CO. 



123 



W. 603, 11 Ky. Law Rep. 109; Kelly t. Tony, 
Judge, 85 Ky. 338, 25 S. W. 264, 15 Ky. Law 
Rep. 718 ; Commonwealth v. Tarvln, 114 Ky. 
877, 72 S. W. 13; King v. Commonwealth, 
153 Ky. 404, 155 S. W. 749. 

It appears, however, from the affidavit of 
Stephens, attorney for plaintiff, that when he 
received In the mall a copy of the order made 
by the circuit judge on December 7th, he 
requested the judge to correct the order so as 
to give the plaintiff 20 days in which to ap- 
ply for a reinstatement of the Injunction, but 
that he was unable to secure this correction. 

[1] The question now is, Am I bound by 
the recitals In the order of dissolution made 
by the judge which does not give any time 
in which to apply for a reinstatement of the 
Injunction, and which, if permitted to stand, 
denies me the right to consider the case and 
determine whether, or not the motion to re- 
instate the injunction should be granted? I 
think I am, notwithstanding the affidavit of 
Stephens. I do not think an order made and 
signed by a circuit judge can be modified, 
altered, or extended on the strength of an 
affidavit filed by an attorney which contro- 
verts the order made by the judge or recites 
that the order made by the judge does not set 
out correctly the motions and requests made 
by the attorney at the time the motion was 
disposed of by the judge. I think that an 
order made by the circuit judge under au- 
thority of the Code has the same force and 
effect as an order made by the court, and 
that It cannot be altered, modified, or con- 
troverted by affidavits. The remedy of the 
plaintiff is, as I have pointed out, to man- 
damus the judge to make an order giving the 
time requested. 

[4] In the absence of an order made by the 
court or judge giving time in which to apply 
to a judge of the Court of Appeals for a re- 
instatement of the injunction, a judge of the 
Court of Appeals has no authority to rein- 
state it, for, as I have said, I must look 
alone to the order made by the circuit judge, 
and If this order fails to show that time was 
given, I must presume that it was not re- 
quested, although of course this presumption 
can be overcome In a direct proceeding 
against the judge by mandamus. 

It Is provided in section 297 of the Code 
that: 

"A judge of the Court of Appeals, if the plain- 
tiff have secured the right to apply for a rein- 
statement of an injunction, * * • may 
* * * reinstate the same in whole or in part ' 

Therefore the jurisdiction of a judge of 
this court to reinstate an Injunction depends 
on the fact whether the plaintiff secured the 
right to apply for Its reinstatement 

For the reasons indicated, the motion to 
reinstate the Injunction must be overruled. 
Chief Justice SETTLE and Judges THOMAS 
and CLARKE heard this matter with me, 
and concur In what I have said about it 



HOLLOWBLL v. JOB K. EXALL ft CO. et al. 
(Court of Appeals of Kentucky. Jan. 26, 1917.) 

1. Judgment «=»801— Fobeclosube or Lteh 
— KviDwtoa. 

Where, in an action in equity by judgment 
creditors to enforce their Hens, evidence that 
one defendant's mortgage for $1,225 on the prop- 
erty levied on was given to a bank and by the 
bank indorsed to snch defendant when a loan for 
the same amount was made by him to the judg- 
ment debtor for the payment of creditors, was 
uncontradicted, a judgment based on a finding 
that the mortgage was intended to secure a debt 
of only $200, and that the larger amount was 
inserted by mistake of the draftsman, was un- 
authorized. 

[Ed. Note.— For other cases, see Judgment 
Cent Dig. H 1887, 1576; Dec. Dig. «=»801.] 

2. Process <S=»154— Wawt of Service— Right 
to Object. 

A defendant could not complain that a sum- 
mons issued on the cross- petition of one code- 
fendant was not served on a third codefendant ; 
the right to complain of want of service being 
personal to the party not served. 

[Ed. Note.— For other cases, see Process, 
Cent Dig. g 209; Dec. Dig. <8=>154.] 

Appeal from Circuit Court, Caldwell 
County. 

Action by Joe B. Bxall ft Co. and another 
against John W. Hollowell and others. From 
judgment for plaintiffs, defendant Hollowell 
appeals. Reversed and remanded, with di- 
rections. 

R> W. Lisanby and O. A. Pepper, both of 
Princeton, for appellant S. D. Hodge, of 
Princeton, for appellees. 

SETTLE, C. J. The appellees, Joe K. Ex- 
all & Co. and the Woldeck Packing Company, 
having obtained judgments against B. F. 
Jennings In the Caldwell quarterly court, the 
former for $85, with Interest and costs, and 
the latter for $55.73, with interest and costs, 
caused executions to Issue thereon, respective- 
ly, which were returned "No property found." 
Thereafter appellees filed In the office of the 
clerk of the Caldwell circuit court transcripts 
of their respective judgments, executions, and 
returns, and caused him to issue thereon 
against Jennings executions for the amounts, 
respectively, of their judgments, interest, and 
costs, which were directed to and placed in 
the hands of the sheriff of Caldwell county, 
who levied them upon a lot In the city of 
Princeton, of little value, and a 150-acre 
tract of land in Caldwell county owned by 
Jennings, subject to a vendor's lien on the 
land In favor of M . P. Smith, and a mortgage 
lien thereon, amount unnamed, in favor of 
the appellant J. W. Hollowell. Shortly there- 
after the appellees brought this action in 
equity in the Caldwell circuit court against 
B. F. Jennings, M. P. Smith, and the appel- 
lant J. W. Hollowell, setting up their judg- 
ments, the levy of their executions, respective- 
ly, upon the 150 acres of land, and asserting 
liens thereon, subject to the vendor's lien of 
Smith and the mortgage lien of Hollowell, 



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124 



191 SOUTHWESTERN REPORTER 



conceding, however, that the lien of the for- 
mer was for a note of $500, but alleging that 
the mortgage lien of the latter was to secure 
a debt of $200; that although the mortgage 
giving the lien purported to have been given 
to HolloweU by Jennings and wife to indem- 
nify him against loss as surety for the for- 
mer on a note of $1,226, due the Fanners' 
National Bank of Princeton, the only consid- 
eration for the mortgage was a loan of $200 
made Jennings by the appellant HolloweU; 
and that by mistake of the draftsman of the 
mortgage It was made to recite that it was 
given to indemnify HolloweU against loss 
as Jennings' surety on a note to the Farmers' 
National Bank of $1,225, when in fact Jen- 
nings and HolloweU had never executed a 
note for that or any other amount to the 
bank. The prayer of the petition asked Judg- 
ment enforcing their execution Hens, respec- 
tively, by a sale of the 150-acre tract of land 
In satisfaction thereof, subject to the Uen 
of Smith for $500, and that of HoUowell for 
$200. 

The appellant HolloweU and Jennings by 
answer traversed the averments of the peti- 
tion, and alleged that at the time of the ex- 
ecution of the mortgage on the land by Jen- 
nings and wife to HolloweU, he had agreed 
to become the surety of Jennings on a note 
of $1,225, to be executed to the Farmers' 
National Bank, which sum the bank bad 
agreed to lend him, and that the mortgage 
was given to indemnify HolloweU against 
loss as surety on such note ; but that In order 
to obtain the bank's consent to the loan, Hol- 
loweU was required to promise its president 
that he would pay or take up the note of 
Jennings whenever demanded by the bank, 
even before its maturity, and that when, after 
writing the note and mortgage, Jennings and 
HoUowell went to the bank to get the money 
on the note, its president announced that It 
was unwilling to lend Jennings the $1,226, 
that HoUowell then said he would let him 
have it if the bank would accept the note 
and assign it to him, whereupon the presi- 
dent of the bank consented to the proposed 
arrangement and assigned the note to Hollo- 
weU, who then and there let Jennings have 
the $1,225 for which the note and mortgage 
were given. The affirmative matter of the 
answer was controverted by reply. 

After the taking of proof and submission 
of case, the circuit court rendered judgment 
enforcing appellees' execution Mens, directing 
a sale of the land in satisfaction, first, of the 
debt of M. P. Smith of $500, second, the mort- 
gage lien of HoUowell to the extent of $200, 
and finally the judgments respectively of 
the appellees. From so much of the judg- 
ment as confined his recovery and the en- 
forcement of his mortgage Uen to $200 and 
refused to him recovery of the remainder of 
his debt of $1,225 and the enforcement of his 
mortgage Uen therefor, HolloweU has ap- 
pealed. 



The action is not one brought to set aside 
the mortgage from Jennings to) appellant, 
upon the ground that it was made In contem- 
plation of insolvency and to prefer the latter 
as a, creditor, nor does the petition allege 
that there was any fraud in the conveyance. 
Appellee only contends that by mistake of the 
draftsman of the mortgage, or on the part of 
some one unnamed, the mortgage was ostensi- 
bly made to indemnify appeUant as surety 
upon Jennings' note for $1,226, when in fact 
it was only Intended to secure a debt of $200 
which Jennings owed appellant. 

[1] We have carefully read the record In 
this case and faU to find therein any evi- 
dence that would tend to show such a mis- 
take. On the contrary, it appears from the 
testimony of appellant and Jennings, which, 
there was no attempt to contradict, that the 
mortgage was given to indemnify appeUant 
against loss as surety for Jennings upon a 
note of $1,226, as therein recited, upon which 
the Farmers' National Bank of Princeton 
had agreed to let Jennings have that amount 
of money as a loan; but that when appel- 
lant and Jennings went to the bank to de- 
liver the note, and the latter to obtain the 
money, the president of the bank said he had 
concluded that he would not let Jennings 
have the money, whereupon it was loaned 
him by appeUant, and to prevent the execu- 
tion of another note and mortgage, the note 
and mortgage then in possession of the par- 
ties were assigned by the president of the 
bank, as such, to appellant The $1,225 thus 
obtained by Jennings from appeUant, In- 
stead of the bank, was, as testified by both 
of them, furnished him by appellant partly 
In cash and partly In a check upon the Farm- 
ers' National Bank. Jennings, in his deposi- 
tion, stated that this money was borrowed 
for paying his debts, and the deposition 
shows that such was the application made 
of It. Jennings gave the names of his cred- 
itors to whom payments were made out of 
the above loan, and the amount paid each, 
and, as stated, no attempt was made by ap- 
pellees to contradict the testimony either of 
Jennings or appeUant; indeed, they offered 
no evidence In support of the allegations of 
their petition with respect to the alleged 
mistake In the amount of the mortgage or 
any other matter put In Issue by the answer 
of Jennings and appellant, nor did appel- 
lees by evidence or otherwise attempt to im- 
peach or discredit either appeUant or Jen- 
nings. It is patent, therefore, from the rec- 
ord presented that appeUant did In good 
faith lend Jennings the $1,225, evidenced by 
the note of the latter, and that in equally 
good faith Jennings and his wife executed 
the mortgage in question to secure the pay- 
ment of that loan to appeUant; and the fact 
that Jennings did not obtain from the bank 
the amount evidenced by the note, but got it 
from appellant, did not affect the validity 
of the note or mortgage or discredit the 



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Temu) 



STATE v. 



-. ROGERS 



128 



genuineness of the transaction as related by 
the parties. If the testimony of Jennings or 
appellant was In any respect false, appellees 
could have shown Its falsity by introducing 
the president of the Farmers' National Bank 
and the creditors of Jennings to whom he 
paid the $1,225, borrowed by him of appel- 
lant; bat they failed to introduce any of 
these persons. So In the situation thus pre- 
sented the testimony of appellant and Jen- 
nings must be accepted as establishing the 
troth of the matters alleged In their an- 
swers. In brief, although the burden of 
proof was upon appellees, there is a total 
absence of proof to establish the averments 
of the petition, from which It necessarily 
follows that the judgment of the circuit 
court was unauthorized. 

As appellees, by the levy of their execu- 
tions upon the ISO-acre tract of land owned 
by Jennings, acquired liens thereon for their 
debts, respectively, subject to the vendor's 
lien of M. P. Smith for $500, and the mort- 
gage lien of the appellant Hollowell for $1,- 
225, they were entitled to a sale of the land 
and application of the proceeds to the pay- 
ment of their debts, after the payment of 
the debts of Smith and appellant, and the 
judgment should have been so rendered. 

[1] It Is true, as claimed by counsel for 
appellees, that the summons Issued on the 
cross-petition of appellant against Jennings 
was not served upon the latter; but that 
fact does not entitle them to an affirmance 
of the judgment of the circuit court Only 
Jennings could complain that he had not 
been served with the summons on the cross- 
petition, and no such complaint is made by 
him. 

For the reasons indicated, the judgment of 
the circuit court Is reversed, and cause re* 
manded. with directions to that court to en- 
ter a judgment directing the sale of the land 
to pay. first, the lien debt of Smith ; second, 
that of the appellant Hollowell; and, third, 
the debts of the appellees, respectively. 



STATE ex ret HAWK et al. v. ROGERS. 

(Supreme Court of Tennessee. Dec. 2, 1916.) 

1. Attobnit and Client <8=>44(1)—Disb ab- 
sent— Grounds. 
The relator owner of land placed It in the 
hands of defendant attorney for sale, agreeing 
the attorney should receive one-half of the re- 
mainder over the amount of an incumbrance and 
one-half of any discount procured by defendant 
os the secured notes. Defendant sold the prop- 
erty representing that it was not incumbered 
and furnished the purchaser as his attorney an 
abstract of title apparently good, which did not 
disclose the incumbrance, and received the price 
which he did not pay to the owner. Subsequent- 
ly he purchased two of the secured notes at a dis- 
count, and, on failing to purchase two more, 
procured the sale of the land by the trustee un- 
der the deed of trust, and purchased it himself 
at the sale. Defendant failing to comply with 
the terms of the sale, the property was again 
advertised and sold to his wife. This sale was 



subsequently set aside for' fraudulent collusion 
between the trustee and the defendant. The 
defendant did not notify the relator purchaser 
of the sale under the deed of trust Held, that 
the transactions constituted a violation of the 
trust imposed in defendant by. relators, owner 
and purchaser of the land, and that defendant 
will be disbarred. 

[Ed. Note.— For other cases, see Attorney and 
Cflen^ Cent Dig. }| 55, 62; Dec. Dig. «=> 

2. Attorney and Client «=»126(2)— Sum- 
mary Remedy or Client. 
While the facts stated against the defendant 
make out a case of fraud and deceit for which 
petitioners may recover, they do not make out a 
case of having received money for which a sum- 
mary judgment for the amount of the purchase 
price of the land can be recovered. 

[Ed. Note.— For other cases, see Attorney and 
Client Cent Dig. §§ 265, 272, 273; Dec Dig. 
<8=»126(2).] 

Certiorari to Court of Civil Appeals. 

Proceedings by the State of Tennessee, on 
the relation of W. L. Hawk and another, 
against Jesse I* Rogers. From a judgment 
of the Court of Civil Appeals, on appeal from 
the circuit court, decreeing that defendant 
be disbarred, he brings certiorari. Affirmed. 

Wm. R. Page, of Knoxville, for relators. 
Jesse L. Rogers, of Knoxville, pro se. 

LANSDEN, J. [1] The defendant Is a 
practicing attorney and a member of the 
Knox county bar, and the petitioners, W. L. 
Hawk and Henry Clay Harper, filed a peti- 
tion in this case to have the defendant dis- 
barred from the practice of his profession, 
and petitioner Harper seeks to recover a 
judgment of about $600. The circuit judge 
and the Court of Civil Appeals have both 
decreed that the defendant be disbarred, 
and he has filed his petition for writs of 
certiorari to have those judgments revers- 
ed by this court The facts found by the 
Court of Civil Appeals are as follows: 

"The facts upon which said disbarment u- 
sought are: Some time prior to September 30 

1912, the relator Henry Clay Harper placed in 
the hands of the defendant Rogers, for sale a 
certain tract of land situated in Knox county, 
Tenn., containing 65 acres. This tract of land 
was incumbered by a deed of trust, executed by 
the said Harper on October 7, 1909, to I* R. 
May, trustee, to secure the payment of four 
notes, due and payable as follows : One note for 

t 121.15, due October 7, 1910; one for $121.15 
ue October 7, 1911 ; one for $121.15 due Octo- 
ber 7, 1912; and one for $121.15 due October 7, 

1913, all of said notes being payable to Charles 
W. Wright. Harper told the defendant, at the 
time of listing said property with him for sale, 
that the same was incumbered by the deed of 
trust above mentioned, and it was agreed be- 
tween the relator and defendant, Rogers, that 
Rogers should sell said property and satisfy 
said indebtedness, and that any amount received 
by the defendant over and above said indebtedness 
should be equally divided between the relator and 
the defendant Rogers ; that it was further 
agreed between said parties that if Rogers were 
able to purchase said notes secured by said deed 
of trust or any of them, at a discount he was 
to account to the relator Harper for one-half 
of such discount in the settlement to be made 
between them. The defendant, Rogers, got in 



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191 SOUTHWESTERN REPORTER 



(Term. 



communication with the relator, W. L. Hawk, 
and finally sold him the tract of land at the price 
of $600 on September 30, 1912, the trade being 
closed in the defendant's office in the city of 
Knoxville. Hawk Bays, before closing the trade 
with defendant for said property, he asked him 
if there were any incumbrance upon it, to which 
inquiry the defendant replied that there was not ; 
that the title was clear. He further says de- 
fendant told him that the man who owned the 
property lived in California, and it would be 
about two weeks before he could get a deed ex- 
ecuted to the property. Hawk says he employed 
the defendant, as an attorney, to make and fur- 
nish him an abstract of title to the property, 
and paid defendant $26 as earnest money to 
bind the trade. Defendant was to send the deed, 
when executed, with the abstract, to the Farm- 
ers' Bank of Sullivan County at Blountville, 
Tenn., to be delivered to the relator Hawk upon 
the^payment of the balance of the purchase price 

"On October, 16, 1912, defendant, Rogers, did 
send to the Farmers' Bank of Sullivan County 
a warranty deed duly executed by Henry Olay 
Harper, together with what purported, on its 
face, to be an abstract of title to said tract of 
land, but which was, in fact, not an abstract, 
but only a list of the various conveyances of said 

Property for a number of years back. At the 
ottom of this purported abstract defendant 
made this statement: 

" The above property has passed through H. 
A. Harth hands and J. W. Saviors, both are 
wealthy men and all transfers are warrantee 
deeds, and I find the title O. K. 
" '[Signed} Jesse L. Rogers.' 

"The relator Hawk, after submitting said deed, 
which contained a general warranty of title, 
to his attorney for the purpose of determining 
whether the same was in proper form and regu- 
lar upon Its face, and upon being advised that 
it was, gave his check to the Farmers' Bank of 
Sullivan County for $675. the balance of the 
purchase price due for said land; and on the 
same day, or the day following, the bank for- 
warded its cashier's check to the defendant Rog- 
ers for a like amount, payable to him as attor- 
ney. This check was received by Rogers on Oc- 
tober 21, 1012, and was deposited in the East 
Tennessee National Bank of Knoxville. On the 
day following the reception of this check he 
went around to the law office of Green, Webb 
& Tate, who held two of the notes secured by 
said deed of trust executed by Harper to R. L. 
May, trustee, for collection, and purchased said 
two notes at less than their face value, paying 
for both notes the sum of $200. He then went 
to J. C. Henderson, who held the remaining two 
notes, and tried to purchase them at the same 
discount at which he had purchased the two 
notes held by the firm of Green, Webb & Tate. 
Henderson refused to sell the two notes held by 
him at a discount, and thereafter, on the 25th 
day of October, 1912, defendant had May, trus- 
tee in said deed of trust, to advertise the prop- 
erty for sale, and the property was sold and bid 
off by the defendant Rogers at the price of $501, 
but Rogers failing to comply with the terms of 
sale, the property was again readvertised by 
May at the instance of Rogers, and was again 
sold and bid off by Rogers' wife, Sallie Rogers, 
at the price of $200. This sale was subsequently 
set aside upon a bill being filed in the chancery 
court of Knox county by Mr. Henderson, the 
holder of the two notes before mentioned, on 
the ground that there had been a fraudulent 
collusion between the trustee and the defendant, 
Rogers, in the advertising of said property for 
the second sale, on account of which he was kept 
in ignorance of said sale. The relator Hawk 
says that, notwithstanding he saw Rogers some 
two or three times after the sale of the property, 
and was in his office upon one occasion in the 
month of May, the defendant, Rogers, never in- 
formed him of said sale, and he remained igno- 
rant of it for months after it was made." 



The defendant, In his testimony, disputes 
most of the material facts set out above, but 
It cannot be said truthfully that there Is not 
ample evidence in the record to support the 
concurrent finding of the circuit judge and 
the Court of Civil Appeals. He denies that 
he agreed with the petitioner Harper, who Is 
a native negro, to sell the land referred to 
and divide equally with Harper the proceeds 
in excess of the mortgage indebtedness. He 
says that Harper listed the property with 
him for sale, and agreed to give him all 
over $275 that he might receive for the prop- 
erty. In support of his testimony to this 
effect, he offers a receipt with Harper's name 
signed to It for $275 as his portion of the 
proceeds of the sale. The Court of Civil 
Appeals found, and we think correctly, that 
this receipt was not executed by Harper, and 
of course is not a corroboration of Rogers' 
statement Harper says that in January, 
1918, the defendant drew a check in his 
favor for $276, and requested Harper to go 
with him to the East Tennessee National 
Bank, where Harper had the check cashed, 
the money being paid through the window. 
He then went to another part of the count- 
ing room of the bank and returned the mon- 
ey to Rogers, who redeposited it in the bank. 
Harper says that he did not receive any part 
of this $275. 

From the foregoing facts it Is perfectly 
plain that the defendant has violated the 
trust Imposed in him both by Harper and 
Hawk, and has forfeited the right to practice 
his profession. It has been truly said that 
the legal profession composes the great un- 
bonded trustee of the human family. It is 
impossible for this court to permit an at- 
torney to practice bis profession and receive 
the confidence of the public when it Is shown 
that he Is unworthy of it. It is always a 
painful duty to prohibit one of our own 
profession from exercising the privileges be- 
longing thereto, but painful as It Is, it is 
a duty from which we shall not shrink when- 
ever the facts Justify our action. 

[2] The assignments of error in this court 
do not comply with the rules regulating such 
assignments. They nowhere cite the evi- 
dence or pages of the transcript where the 
errors claimed against the decree of the 
Court of Civil Appeals can be found. It is 
true that citations to the transcript are found 
in the general argument of the assignments 
of error, but none are found In the assign- 
ments themselves. However, we have treat- 
ed the assignments as good, and have ex- 
amined the opinion of the Court of Civil 
Appeals and the record cited against it This 
record, on the material facts, consists chiefly 
of the statements of the defendant, but the 
incriminating* facts and those which show 
defendant unworthy of bis profession are tes- 
tified to by the petitioners Hawk and Har- 
per, and are evidenced by writings signed by 
the defendant, or which he admits that he 
knew. The assignment of error made by 



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TINSLEY 



HEARN 



127 



tbe petitioner Hawk Is not good. The Court 
of Civil Appeals properly overruled It The 
facta stated against the defendant make out 
a case of fraud and deceit for which petition- 
ers may be entitled to recover, but they do 
not make out a case of having received mon- 
ey for which a summary judgment can be re- 
covered. 

The Court of Civil Appeals la affirmed. 



TINSLEY v. HEARN et al 
(Supreme Court of Tennessee. Jan. 18, 1017.) 

1. Vendor and Purchases «=»176— Deed— 
Description — Deficiency in Quantity. 

Although a sale of land was in gross, and 
the deed described the tract as containing 66 
acres, more or less, a deficiency of 10 acres, one- 
sixth of the entire boundary represented, is so 
great as to justify an inference of mutual mis- 
take, and the purchaser is entitled to abatement 
of the purchase price. 

[Ed. Note.— For other cases, see Vendor and 
Purchaser, Cent. Dig. ft 833-840; Dec. Dig. 
<8=>176\] 

2. Vendob and Purchases «=»176— Land 
Conveyed — Deficiency — Abatement in 
Pbick. 

Where plaintiff purchased a tract of land 
with improvements, which he inspected before 
purchasing, in determining the amount of abate- 
ment on the purchase price for a deficiency of 
10 out of 66 acres, more or less, conveyed by the 
deed, the value of the improvements as of the 
date of sale should be deducted from the con- 
sideration before making a division for average 
value per acre. 

[Ed. Note.— For other cases, see Vendor and 
Purchaser, Cent Dig. iS 833-840; Dec. Dig. «=» 
176.] 

Certiorari to Court of Civil Appeals. 

Action by E. F. Tlnsley against S. J. Hearn 
and another. From a judgment of the Court 
of Civil Appeals for plaintiff, on appeal from 
the chancery court, defendants bring certi- 
orari. Remanded to the chancery court, with 
directions to modify the decree. 

Seth M. Walker, of Lebanon, for plaintiff. 
J. H. Campbell, of Lebanon, for defendants. 

WILLIAMS, J. [1] Hearn and Stratton 
sold to Tlnsley a tract of land, representing 
In tbe negotiation that It contained 66 acres. 
Tlnsley went upon the tract and saw the 
major portion of It particularly noting the 
residence and other improvements, and pur- 
chased believing that there were 66 acres In 
the boundary. The deed of conveyance re- 
cited a consideration of $430. The proof 
now in tbe record indicates that the improve- 
ments were of a value probably above $1,260. 

Some time after tbe conveyance It was 
ascertained that there were in the boundary 
only 56 acres. This suit was brought by the 
purchaser to recover for the 10 acres lacking. 
The rulings of the chancellor and the inter- 
mediate appellate court will be set forth in 
the body of the opinion. 

Though the sale was In gross, and the deed 



of conveyance described the tract as contain- 
ing 66 acres, "more or less," a deficiency of 
16% per cent (one-sixth) of the entire bound- 
ary represented is so great as to justify an 
inference qf mutual mistake, and the pur- 
chaser is entitled to an abatement of tbe pur- 
chase price. Both the chancellor and the 
Court of Civil Appeals so held, and correctly, 
under the rules laid down In Bigham v. Mad- 
ison, 108 Term. 868, 52 S. W. 1074, 47 L. R. 
A. 267, and Rich v. Scales, 116 Tenn. 57, 91 
S. W. 50. 

[2] The chancellor, however, decreed an 
allowance for the deficiency in favor of the 
purchaser on the basis of the average value 
of the acreage, Improved and unimproved, In 
the entire tract; and this Is complained of 
by the appealing vendors, who Insist that, as 
there were valuable Improvements on the 
land which the purchaser undoubtedly took 
over, this fact should have been taken into 
consideration, and that the purchaser's right 
In any abatement is to actual compensation, 
not necessarily an abatement in price pro- 
portionate to the deficiency. 

We think there Is merit in this insistence. 
The purchaser was not mistaken or disap- 
pointed in respect to the improvements. The 
residence and outhouses were seen by him, 
and he concedes In his testimony that they 
had a considerable value. The failure to get 
some of the land he bought must therefore 
have reference to the portion on which the 
Improvements were not located, and the true 
criterion of abatement is not tbe ratio of the 
quantities, represented and real. 

Perhaps the leading case on this point Is 
that of Hill v. Buckley, 17 Ves. Jr. 394, 34 
Eng. Reprint 153, In which it appeared that 
the quantity of land conveyed was 217 acres, 
while In fact there was not that much by 
about 26 acres. A part of the land was 
woodland, and a part waste land of consider- 
ably less value. All of the woodland was 
comprehended, so that the purchaser got all 
of its value. The mistake, therefore, affected 
the waste land. The Master of the Rolls 
said: 

"But there is a difficulty in this case from 
the nature of the mistake, which must have in- 
fluenced the vendors in their estimate of the 
price in a manner that if a reasonable abate- 
ment were now to be decreed, it would be ex- 
tremely disadvantageous to them; for though 
they believed they had 217 acres to. give to the 
purchaser, and must be supposed to have asked 
a price in proportion, yet they did not believe 
that it was all woodland. They imagined that 
28 acres consisted only of hedges and fences, 
and other waste. They could not certainly set 
the same value upon that, though perhaps it 
was considered of some value, as upon land cov- 
ered with wood of mature growth; therefore by 
a ratable abatement from the purchase money 
it is clear they must allow the purchaser more 
than they would have received from him, and 
consequently they would be compelled to accept 
less than it was ever in their contemplation to 
take. • * * The abatement is to be only so 
much as soil, covered with wood, would be 
worth, after deducting the value of the wood." 



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191 SOUTHWESTERN REPORTER 



(Tenn. 



In Stow v. Boseman, 29 Ala. 397, there 
was a lack of 100 acres out of 640, bat on the 
land conveyed was a valuable ferry. The 
court said that, Inasmuch as the purchaser 
obtained all In the way of benefit from the 
ferry that was contemplated In the contract, 
he must be compensated for the deficiency In 
the quantity of land by ascertaining the aver- 
age 'value without reference to such benefit; 
or, in other words, the average value of the 
lands must be ascertained upon the hypothe- 
sis of the absence of the ferry, and that aver- 
age value must be multiplied by the number 
of acres of the deficiency. 

In Wilcoxon r. Calloway, 67 N. C. 468, 
citing Hill v. Buckley, supra, it was said: 

"It is not the general rule that the abatement 
shall be in the proportion of the deficient quan- 
tity to the quantity represented. Such a rule 
would in many cases be plainly unjust. * * * 
Take the case of a contract to convey a definite 
tract, represented as containing 100 acres, 
which runs out 66 acres only, if there were build- 
ings or other things of value upon the tract, it 
would not be fair to calculate the value of the 
deficient acres by an average, obtained by di- 
viding the price agreed to be paid by the number 
of acres agreed to be conveyed, because the pur- 
chaser has got the land upon which were the 
thincrs which give it a peculiar value, and would 
not have got them over again had the quantity 
held out as represented." 

See, also, Hoback v. Kllgores, 26 Grat (Va.) 
442, 21 Am. Rep. 317; 39 Cyc. 1594. 

The governing principle may be seen in 
sharper outline in an illustration wherein 
the acreage is diminished : Assume a parcel 
of 10 acres in the suburbs of one of our cities 
to be the subject-matter of sale, and that 
on the same there be situated a resi- 
dence of value $20,000, and that for the par- 
cel, including the house, the sum of $25,000 
be paid. Could it be maintained as equitable 
that, on ascertaining later a deficiency of 2 
acres, the abatement sum should be fixed at 
$3,000, and not $1,000? 

In determining the amount of the abate- 
ment, the value of the Improvements should 
be fixed, of course, as of the date of the sale 
in their condition at that time ; but bound- 
ary fences should not be considered for ob- 
vious reasons. 

The Court of Civil Appeals was of opinion 
that the chancellor erred in fixing the abate- 
ment sum, but itself erred in the following 
respect : The residence on the tract was de- 
stroyed by fire between the date of the sale 
and the bringing of suit, and the purchaser 
realized $750 from a fire insurance policy. 
Notwithstanding the proof Indicates that the 
residence was of a greater value, not to men- 
tion other improvements, the Court of Civil 
Appeals deducted only the amount of such 
Insurance from the consideration sum before 
making a division for average value. 

The proper decree is one for a reference to 
the master to take proof and report the value 
of the Improvements, as outlined above. 

Granting a writ of certiorari, we direct 



that the decree of the Court of Civil Appeals 
be modified accordingly, and that the cause 
be remanded to the chancery court for the 
purpose Indicated. Appellee will pay two- 
thirds of the costs of the appeal. 



BYNUM v. MILLER. 

(Supreme Court of Tennessee. Jan. 13, 1917.) 

Witnesses «3=»879(2) — Credibility — Evi- 
dence— Admissibility. 
In an action for slander, although the gen- 
eral rule in Tennessee is that statements of the 
defendant made subsequent to those on which 
the suit is founded are inadmissible, testimony 
of subsequent statements of defendant, that 
plaintiff had been stealing from defendant's firm 
for eighteen months or two years and had stolen 
"from $1,600 to $2,000 worth of stuff," were 
admissible, when limited to the purpose of re- 
flecting upon the credibility of the defendant 
and his brother as witnesses and not for the par- 
pose of showing malice. 

fEd. Note.— For other cases, see Witnesses, 
Cent Dig. §§ 1220, 1248; Dec. Dig. «=379(2)J 

Certiorari to Court of Civil Appeals. 

Action by Cecil Miller against W. H. 
Bynum. From a judgment of the Court of 
Civil Appeals affirming a judgment of the cir- 
cuit court for plaintiff, defendant brings cer- 
tiorari. Affirmed. 

Brown & Brown, of Murfreesboro, for 
Bynum. Hancock ft Houston, of Woodbury, 
J. L. Ewell, of Manchester, and H. T. 
Stewart and Josh Barton, both of Woodbury, 
for Miller. 

NEIL, 0. J. In actions for slander and 
libel, the general rule in Tennessee, contrary 
to what seems the current of authority else- 
where (25 Cyc. 496-498), is that statements of 
the defendant, made subsequent to those on 
which the suit Is founded, are inadmissible 
in evidence against him. Saunders v. Bax- 
ter, 6 Helsk. (53 Tenn.) 369, 388-392 ; How- 
ell v. Cheatham, Cooke (3 Tenn.) 247-249; 
Robinson v. Baker, 10 Lea (78 Tenn.) 402, 
405; Russell v. Farrell, 18 Pick. (102 Tenn.) 
248, 251, 52 S. W. 146. In Witcher v. Rich- 
mond, 8 Humph. (27 Tenn.) 473, 475, 476, a 
distinction was taken to the effect that 
such testimony was competent for the par- 
pose of showing an admission of the defend- 
ant that he had used the words complained 
of, and his meaning in uttering these words. 
In the case before us, the trial judge made 
an additional distinction, and, we think, 
correctly. 

The defendant was charged with having 
used, of and concerning the plaintiff below, 
the following language, "We have caught 
Cecil stealing." Again, "I commenced to 
watch him, and found him to be the damndest 
rogue I ever saw." When sued, Bynum ad- 
mitted the use of the words, and pleaded jus- 
tification. It was in evidence that Cecil Mil- 
ler had for a long time been accustomed to 



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RAMSEY v. HOOD 



stay around the store of the Bynums and sell 
goods there from time to time, though not 
regularly employed; sometimes making only 
occasional Bales, and apparently, under such 
circumstances, without compensation. The 
testimony admitted over the objection of 
Bynum, defendant below, consisted of state- 
ments made by him to certain witnesses, that 
Cecil Miller had been stealing from the firm 
of Bynum Bros, for about eighteen months or 
two years, and had Stolen "from $1,500 to $2,- 
000 worth of stuff." It was In evidence that no 
effort had ever been made by Bynum to cause 
the arrest of Miller. The trial Judge, In ad- 
mitting the evidence complained of, instruct- 
ed the jury that these subsequent statements 
could be looked to only for the purpose of 
reflecting on the credibility of the defendant 
and his brother Anse Bynum as witnesses. 
Continuing his honor said: 

"It is Introduced here as an alleged contra- 
dictory statement of what he (Anse Bynum) 
said here in his testimony as to what plaintiff 
had stolen, and is only to be weighed by you 
as it may reflect upon the credibility of that 
witness, and as to what weight the testimony of 
Anse Bynum is entitled to." 

Substantially the same ruling was made 
as to similar statements alleged to have been 
made by the defendant TV. H. Bynum. The 
same Instruction was repeated, in substance, 
in the charge, with the further direction, in 
accordance with our cases referred to supra, 
that these subsequent statements could not 
be looked to for the purpose of showing mal- 
ice. 

There was no error in the action of the 
trial Judge in admitting the evidence referred 
to, limiting it as he did. 

Other points are disposed of orally. They 
were all correctly adjudged by the Court of 
Civil Appeals. In overruling all of the er- 
rors assigned in that court, and in affirming 
the Judgment of the trial court In favor of 
the plaintiff below, there was no error, and 
the Judgment of that court is therefore in all 
things affirmed. 



RAMSEY v. HOOD et aL 
(Supreme Court of Tennessee. Jan. 13, 1917.) 

1. Justices of the Peace <&=31— Jurisdic- 
tion— Writs or Restitution. 

The jurisdiction of a justice of the peace is 
purely statutory ; and since the justice court is 
not a court of record, it cannot issue a writ of 
restitution. 

[Ed. Note.— For other cases, see Justices of 
the Peace, Cent Dig. $ 71; Dec. Dig- «=»31J 

2. Fobcibi* Entry anu Detainer $s»41— 
Writ of Restitution — Discretion of 
Court. 

The issuance of the writ of restitution, while 
a right of the party aggrieved, rests within the 
sound discretion of the court. 

[Ed. Note.— For other cases, see Forcible En- 
try and Detainer, Cent Dig. §§ 167, 168; Dec. 
Dig. «=>41.] 



Certiorari to Court of Civil Appeals. 

Petition by Enos Ramsey for writ of resti- 
tution, against H. M. Hood and others. On 
certiorari to review judgment of the Court 
of Appeals, affirming judgment of Circuit 
court dismissing the petition. Writ declined. 

Conatser & Case, of Jamestown, for peti- 
tioner. U T. Smith, of Jamestown, for de- 
fendants. 

LANSDEN, J. This is a petition filed before 
a justice of the peace for a writ of restitu- 
tion.. The Justice of the peace dismissed the 
petition, and the matter was carried before 
the circuit judge by appeal, where he like- 
wise dismissed it upon motion of the defend- 
ants. The case was brought to the Court 
of Civil Appeals, and the action of the cir- 
cuit judge was affirmed. The case is now be- 
fore us upon petition for certiorari to the 
judgment of that court. 

The facts stated in the petition, in sub- 
stance, are as follows: 

"The question in this case may be thus pre- 
sented and stated : M. H. Spurting, justice of 
the peace, in the case of H. M. Hood et al. v. 
Clarinda Ledford, for unlawfully and forcibly 
detaining a tract of land, decided the case 
against said Clarinda Ledford, and ordered a 
writ to issue to dispossess the said Clarinda and 
put Hood in possession of the land. James Rois- 
don, the successor in office of the justice of the 
peace, rendering the judgment, issued the writ 
and the officer, finding plaintiff in error, ' Enos 
Ramsey, in possession of the land, except a bouse 
on it, ejected him ; Ramsey being in actual pos- 
session of the land when the suit of unlawful 
and forcible detainer was instituted against 
Clarinda Liedford. Under this state of facts, as 
justice of the peace James Roisdon issued a 
writ of possession, under which Ramsey^plain- 
tiff in er.-or, was ejected from the land. Has he 
the jurisdiction to restore him to its posses- 
sion ?" 

[1] The foregoing statement of the case 
Is found, in substance, in the briefs of both 
parties, and from an examination of the opin- 
ion of the Court of Civil Appeals, we find it 
to be correct The writ must be denied. The 
jurisdiction of a justice of the peace is pure- 
ly statutory. It is not a court of record, 
and is without power to issue a writ of resti- 
tution. 

A court of record has inherent jurisdiction 
to correct its mistakes and errors, and hence 
It has abundant power to issue writs of resti- 
tution. Blair v. Pathklller, 5 Yerg. 230; Wal- 
len v. Huff, 3 Sneed, 82, 65 Am. Dec. 49; 
Scott v. Newsom, 4 Sneed, 457; Rook v. God- 
frey, 21 Pick. 534; Hickman v. Dale, 7 Yerg. 
149. But such authority does not exist in 
a justice of the peace. It would not do to 
permit justices of the peace to exercise the 
Jurisdiction claimed in this case. As stated, 
their courts are not courts of record, and 
under our Constitution each justice of the 
peace in his county has territorial Jurisdic- 
tion coextensive with the county. 

The rights of the parties must necessarily 
rest within the recollection of the justice of 
the peace, as he has no records to show them. 



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191 S.W.-9 



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191 SOUTHWESTERN REPORTER 



fTenn. 



Each Justice In the county, after the lapse of 
a long period of time, might well assume to 
exercise the Jurisdiction claimed. 

[2] In addition, the issuance of the writ of 
restitution, while it is a right which belongs 
to the party aggrieved, rests within the sound 
discretion of the court awarding it 18 Enc. 
PL & Pr. 878; Caru there y. Caru there, 2 
Lea, 71; Rlair v. Pathklller, supra; Reck- 
wlth t. Cumberland Coal & Coke Co., Decem- 
ber term, 1902. 

In the last case the court declined to Issue 
the writ of restitution because at the time the 
bill was filed — 

"the defendant was In possession of the land, 
having been placed there by the circuit court 
through writ of possession already mentioned. 
Inasmuch, however, as we can see from the 
proceedings of the circuit court filed in this 
cause that the writ was sought in that case 
under a proceeding to which the complain- 
ants were not parties, and under an assessment 
made to persons under whom they did not claim, 
and inasmuch as it is not shown that the per- 
son in whose name the land was assessed ever 
had any interest in it, we have concluded to let 
the possession rest as it now is. Under the cir- 
cumstances, it would seem to be a mere slavish 
adherence to a technicality to restore defendants 
to possession and compel complainants to resort 
to a petition in the circuit court for restitution. 
What has been done was erroneously done, be- 
cause the chancellor had no legal right to order 
the issuance of a writ of restitution under the 



circumstances ; but it has been tried, and prac- 
tical justice has been attained, and we shall not 

disturb the result or interfere with the matter 
further than to tax the complainants with all 
the costs." 

In the case of Caru there v. Oaruthers, su- 
pra, Mrs. Caruthere had been dispossessed 
of a large boundary of land by an erroneous 
decree passed by the chancellor, and on her 
application for writs of restitution the court 
restored her to only 10 acres of the land, 
less than the amount of which she was origi- 
nally In possession, because it could be seen 
from her testimony that that was all she 
was entitled to. A number of cases are cited 
in the Enc PL & Pr., supra, from the states 
of Alabama, California, Illinois, Kentucky, 
Maryland, Massachusetts, Michigan, Missis- 
sippi, Nevada, New Jersey, New York, North 
Carolina, Ohio, Pennsylvania, Texas, West 
Virginia, Wisconsin, and England, as sustain- 
ing the text to the effect that: 

"Whether there ought to be restitution in any 
particular case is a question addressed to the 
sound discretion of the court" 

We, therefore, hold that Justices of the 
peace are without jurisdiction to Issue writs 
of restitution, because they are not courts 
of record, and because their Jurisdiction is 
purely statutory. Writ declined. 



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EWELL r. SNEED 



131 



EWELL v. SNEED et «L 
(Supreme Court of Tennessee. Jan. 15, 1917.) 

L Charities «=»18 — Charitable Trust— 

Creation— Want ot Trustee. 
A bequest to two trustees to be appointed 
by a synod, an unincorporated organization, to 
be used in educating young ministers, is invalid 
for want of trustees. 

[Ed. Note.— For other cases, see Charities, 
Cent. Dig. IS 18, 42, 78; Dec. Dig. «s>18.] 

2. Trusts <t=> 160(3)— -Appointment or Trus- 
tees— Notice to Beneficiaby. 
There can be no valid original appointment 

of a trustee without notice to some, at least, of 

the beneficiaries, or some representation of them 

before the court 
[Ed. Note.— For other cases, see Trusts, Cent. 

Dig. i 208; Dec. Dig. *=»160(3).] 

8. Charities «=»47— Charitable Tbubt— Ap- 

POINTMENT OF TBUSTEES. 

Where the beneficiaries of a charitable trust 
are not named, or are uncertain individuals of 
an unascertained class so that no one of them 
can sue or be sued respecting the trust, no one 
can appear for them except parens patriae, or 
some official to whom that prerogative has been 
delegated. 

[Ed. Note.— For other cases, see Charities, 
Cent. Dig. } 85 ; Dec. Dig. <8=>47.] 

4. Chabiths <S=»47— Charitable Trust— Ap- 
pointment or Trustees. 

In Tennessee, no official has been intrusted 
with the authority and duties of parens patriae 
to represent the unascertained beneficiaries of 
a charitable trust, and the chancellor therefore 
cannot originally appoint a trustee for such 
trust. 

[Ed. Note.— For other cases, see Charities, 
Cent Dig. i 85 ; Dec. Dig. «=>47.] 

5. Charities «=»47— Chabitable Trusts— 
Appointment or Trustees— Statute. 

Shannon's Code, f 6166, authorising the 
Attorney General to maintain action to bring 
the trustees of a charitable trust to an account- 
ing for the management of the property, to re- 
move such trustees, and to secure the funds for 
the benefit of those interested, presupposes the 
valid appointment of trustees, and does not au- 
thorize the Attorney General to represent unas- 
certained beneficiaries of a charitable trust so 
as to permit the appointment of trustees where 
none were originally appointed. 

[Ed. Note.— For other cases, see Charities, 
Cent. Dig. 5 85 ; Dec. Dig. <8=>47.] 

6. Courts «=93(1)— Rules op Decision— 
Fobmeb Decisions— Rules or Property. 

Prior decisions as to charitable devises in 
trust which have become rules of property can- 
not be overturned to harmonize with the ma- 
jority of decisions in other jurisdictions. 

[Ed. Note.— For other cases, see Courts, Cent. 
Dig. | 336 ; Dec. Dig. «==93(1).] 

7. Wills «=>184(1)— Revocation by Codicil. 

Ordinarily a will and codicil are construed 
together, and the latter will not be deemed to 
revoke the former, unless such an intention is 
expressed or necessarily implied. 

[Ed. Note.— For other cases, see Wills, Cent. 
Dig. i 462 ; Dec. Dig. «8=>184(1).] 

8. Wills *=»858(4)— Revocation bt Codicil 
— Void Gift. 

Where the original will gave the residue to 
the uncle of testatrix, a codicil giving the uncle 
only a life interest therein and attempting to 
give the rest in trust for a charity, which trust 
was void for want of trustees, revoked the will 
only conditionally, if at all, and, the condition 



having failed, the property passes to the uncle 
under the original will. 

[Ed. Note.— For other cases, see Wills, Cent 
Dig. i| 2176, 2177, 2178; Dec. Dig. «=»858(4).] 

Certiorari to Court of Civil Appeals. 

Suit by P. D. Swell, as administrator of 
the estate of Mary H. Ewell, deceased, 
against Mary A Sneed and others, for 
the construction of a will and codicil. A 
decree of the chancellor sustaining the cod- 
icil and appointing trustees was reversed 
by the Court of Civil Appeals, which held 
the heirs of a residuary legatee under the 
win entitled to the estate, and the trustees 
and heirs of testatrix bring certiorari. Opin- 
ion of the Court of Civil Appeals affirmed. 

Roane Waring, of Memphis, for plaintiff. 
R. M. Barton and W. H. Borsje, both of 
Memphis (Luke B. Wright, of Memphis, of 
counsel), for Mary A. Sneed and John S. 
Webb, Adm'r. T. K. Riddick and Tim E. 
Cooper, both of Memphis, and H. C. Moor- 
man, of Somerville, for defendant Young 
Ministers, etc. M. C. Ketchum, of Memphis, 
for general heirs at law and distributees of 
Mary H. Ewell, deceased. 

GREEN, J. This case Involves primarily 
the validity of a provision of the will of 
Mary H. Ewell, deceased, for the education 
of young ministers of the Presbyterian 
Church. 

Mary H. Ewell was a resident of Fayette 
county, Tenn., and died testate March 11, 
1912. Her will consisted of an original tes- 
tament and codicil thereto. The provisions 
of the body of the will are not material In 
this connection. With the exception of cer- 
tain small legacies, Miss Ewell devised and 
bequeathed her property to her uncle, Robert 
H. Shepherd. He was also named as residu- 
ary legatee. This will was dated June 22, 
1885. On June 3, 1907, she added a codicil 
In the following language: 

"In the name of God Almighty, amen. L 
Mary H. Ewell, being of sound mind, do this 
day, June 8, 1907, wul and bequeath all of my 
property both real and personal to my beloved 
uncle, Robert H. Shepherd during his lifetime. 
At his death all real estate to be sold and all 
money collected and held by two trustees to be 
appointed by the Synod of Memphis and the said 
money to be used in educating young ministers 
of the Presbyterian Church. I desire all of 
my household goods and jewelry to be given to 
my' namesake Mary H. Ewell." 

After the death of the testatrix, the will 
and codicil were duly probated. Mr. Shep- 
herd qualified as executor and later died. 

Miss Ewell was a member of the Presby- 
terian Church at La Grange, Tenn. La 
Orange Church was within the bounds of 
what was known as the "Synod of Memphis" 
formerly. Prior to the death of Miss Ewell 
the Synod of Memphis was abolished and 
the Presbyterian Church In the United States 
placed the churches belonging to that synod 
In the Synod of Tennessee. The synod Is a 
voluntary, unincorporated religious associa- 



6=»For other cams see mat toplo sad KBY-NUliBER la all Kqr-Numbend Digests and Indexes 



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191 SOUTHWESTERN REPORTER 



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tlon — a sort of intermediate church court, . 
without legal entity. 

The Synod of Tennessee elected two trus- 
tees, C. W. Heiskell and G. W. McRae, to 
administer the trust attempted to be created 
by Miss Ewell's wllL 

The personal representative of Miss Ewell 
filed this bill against the aforesaid trustees 
and against the heirs and distributees of 
Miss Ewell, and the heirs and distributees 
of R. H. Shepherd, seeking a construction of 
the will and directions from the court as to 
the proper disposition to be made of the 
estate in his hands. 

The trustees appointed by the Synod of 
Tennessee answered and filed a cross-bill to 
which they made the Attorney General of 
Tennessee a party, as well as the heirs and 
representatives of the testatrix, and of R. H. 
Shepherd, and it was Insisted by the trustees 
that the provision of Miss Ewell's will for 
the education of young ministers of the Pres- 
byterian Church was valid and should be up- 
held. The Attorney General concurred in 
this contention in the answer to the cross- 
bill filed by him. All the heirs and represent- 
atives assailed the validity of said provi- 
sion of the codicil, and by appropriate plead- 
ings, they presented the question as to which 
set of them should take the estate in the 
event the court held the attempted charitable 
trust invalid. This controversy between the 
heirs and representatives will be noticed 
later. 

The chancellor decreed in favor of the cod- 
icil and himself appointed or ratified the 
appointment of the two trustees who had 
been nominated by the Synod of Memphis, 
and directed that the estate.be turned over 
to said trustees for the purposes indicated 
by the will. 

The Court of Civil Appeals reversed this 
decree of the chancellor, and concluded that 
the testatrix had failed in her effort to 
establish a valid charitable trust, and that 
court held the heirs and representatives of 
Mr. Shepherd to be entitled to the estate 

The case is before us on a petition for cer- 
tiorari filed by the trustees, and upon peti- 
tion for certiorari of the heirs and represent- 
atives of the testatrix. 

[1] As indicated heretofore, the first ques- 
tion In the case Is .upon the validity of the 
provision for the education of young minis- 
ters of the Presbyterian Church. 

In the consideration of this question the 
court feels obliged for the most part to con- 
fine the discussion of authorities to the de- 
cisions of this state. We have so many cases 
involving charitable trusts and the leading 
principles of law on this subject have been 
so well settled In Tennessee, that we can- 
not be governed by decisions from other 
courts. We will, therefore, only look to 
other cases In so far as It becomes necessary 
to vindicate the soundness of certain former 
rulings of this tribunal tbat arc assailed 
herein. 



'The first case arising in Tennessee upon 
the question of charities was that of Green 
v. Allen, 24 Tenn. (5 Humph.) 170. The opin- 
ion in this case was delivered by Judge Tur- 
ley. It has long been regarded by the pro- 
fession as a classic in the law, and the funda- 
mental rules there laid down have never 
been modified or consciously departed from 
by this court 

It is shown in Green v. Allen that the 
Court of Chancery In Tennessee possesses 
only that jurisdiction formerly exercised by 
the chancellors of England known as the "ex- 
traordinary jurisdiction," as distinguished 
from prerogative and other jurisdiction, and 
Judge Turley then says: 

"I therefore think that we may safely as- 
sume that the power of the chancellor to decree 
an execution of a trust for charitable purposes 
so far as it arises out of his extraordinary 
jurisdiction, rests upon the same principles as 
trusts of every other kind and description, and 
that there must be either a cestui que trust, 
having sufficient legal capacity to take as dev- 
isee, or donee, or that there must be a feoffee or 
trustee, charged with a specific and legal trust, 
before the jurisdiction can be exercised." 

Again the learned Judge says: 

"If the charity be created either by devise or 
deed, it must be in favor of a person having 
sufficient capacity to take as devisee or donee, 
or if it be not to such person, it must be definite 
in its object, and lawful in its creation, and to 
be executed and regulated by trustees, before 
the Court of Chancery can, by virtue of its 
extraordinary jurisdiction, interfere in its ex- 
ecution." Green v. Allen, supra. 

These conclusions, thus expressed, have 
been approved or applied by this court in the 
following reported cases: Oakley v. Long, 29 
Tenn. (10 Humph.) 254 ; Dickson v. Montgom- 
ery, 31 Tenn. (1 Swan) 848 ; Franklin v. Arm- 
field, 34 Tenn. (2 Sneed) 305; Gass v. Ross, 
35 Tenn. (3 Sneed) 211 ; Frierson v. General 
Assembly, 54 Tenn. (7 Helsk.) 683; White v. 
Hale, 42 Tenn. (2 Cold.) 77 ; Cobb v. Denton, 
66 Tenn. (6 Baxt) 235; Daniel v. Fain, 73 
Tenn. (5 Lea) 819; Reeves v. Reeves, 73 
Tenn. (5 Lea) 644; State v. Smith, 84 Tenn. 
(16 Lea) 662; Heiskell v. Chickasaw Lodge, 
87 Tenn. 668, 11 S. W. 825, 4 L. R. A. 699; 
Rhodes v. Rhodes, 88 Tenn. 637, 13 S. W. 590 ; 
Johnson v. Johnson, 92 Tenn. 559, 23 S. W. 
114, 22 L. R. A. 179, 36 Am. St Rep. 104; 
Carson v. Carson, 115 Tenn. 87, 88 S. W. 175 ; 
Jones v. Green (Ch. App.) 36 S. W. 729. 

Besides the propositions above quoted from 
Green v. Allen, certain other conclusions 
reached in that case have been approved and 
applied from time to time in the subsequent 
cases cited above. 

One of these is that the functions of the 
king as parens patriae, with respect to the 
administration of charities, have not been de- 
volved upon any officer or department of gov- 
ernment in Tennessee. Another rule laid 
down in Green v. Allen, and followed in 
White v. Hale, Daniel v. Fain, and Reeves v. 
Reeves, Is that a charity must stand or fall 
as It was at the death of the testator and 
cannot be validated by any subsequent action. 



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likewise, wherever reference Is made to 
these matters In our cases the doctrine of 
cy pree has been repudiated, and the Statute 
of 43 Elizabeth, c. 4, declared not to be in 
force In Tennessee. 

In a number of our cases charitable be- 
quests have been upheld because they were 
definite in their objects and were supported 
by trustees. Such cases are Dickson v. Mont- 
gomery, Franklin v. Armfleld, Cobb v. Den- 
ton, Frierson v. General Assembly, Helskell 
t. Chickasaw Lodge, and State v. Smith, and 
perhaps others unreported. 

In some of our cases charitable bequests 
have been held invalid because their purpos- 
es were not sufficiently definite to be ascer- 
tained and effectuated by a court of chancery. 
Such particularly are the cases of Rhodes v. 
Rhodes, Johnson v. Johnson, and Jones v. 
Green. 

In Green v. Allen, the court held the be- 
quest invalid both because it was not sus- 
tained by trustees, and because indefinite. 

In White v. Hale, Daniel v. Fain, and Beeves 
v. Reeves, charitable bequests were held in- 
valid for the reason that they were not sup- 
ported by trustees, and apparently for that 
reason alone. 

In the case before us, no trustees were ap- 
pointed by the will, but it was the expressed 
Intention of the testatrix that trustees should 
be appointed by the Synod to take the prop- 
erty and administer the trust. 

It is insisted that a court of equity never 
allows a trust to fail for want of a trustee, 
and it is urged that this maxim applies as 
well to charitable trusts as to other trusts. 
Such indeed is the general rule, and this 
rule is applied to charitable trusts in many 
jurisdictions. The rule has no application, 
however, to charitable trusts In Tennessee. 
We cannot agree with learned counsel that 
this question is undecided in this state. 

In White v. Hale the testator devised cer- 
tain property to his wife for life, and after 
her death to the Nolachucky Association, "to 
be appropriated to the support of old Baptist 
ministers of the Gospel of Jesus Christ, who 
have maintained a good character, and of 
the same faith and order of the Nolachucky 
Association." The will then continued: 

"I devise and direct that my land be never 
sold; but that the said Association appoint and 
empower some discreet member of their own 
body, who shall be authorized to rent and re- 
ceive rents, and apply the game for the above 
purposes, as directed, forever ; and such agent, 
when appointed, whenever found incapable, 
from want of ability or otherwise, to manage as 
above directed, the said Association shall supply 
the vacancy by appointing another, which pow- 
er I give into the hands of said Association, 
forever." 

In Daniel v. Fain the testator's will pro- 
vided that a fund "be put Into the bands of 
a trustee who. is to be selected by the Union 
Presbytery, or whatever Presbytery may em- 
brace Jefferson county, to be employed by 
said trustee to assist some Indigent young 



man in a preparatory course for the sacred 

ministry." 

In both of these cases, almost Identical 
with the present case, the provisions referred 
to were held Ineffectual. Following Green 
v. Allen It was held that a charity must 
stand or fall as it was found to exist at the 
death of the testator, and that a provision 
for the appointment by voluntary unincor- 
porated associations of trustees to manage 
property for charitable purposes would not 
validate such devises, and remedy the fail- 
ure of the will to provide trustees capable of 
taking. 

In Reeves v. Beeves there was a devise of 
a certain dwelling house and lot in Johnson 
City to testator's wife for life and at her 
death "to descend to the Christian Church, 
as a parsonage or ministerial house for said 
denomination of Christians." The Christian 
Church was not incorporated, and this de- 
vise was held invalid because no trustee was 
interposed. The court quoted the rules laid 
down in Green v. Allen to the effect that the 
devise must be in favor of a person having 
sufficient capacity to take, or definite in its 
object, and to be executed by trustees, and 
added: 

"In other words, it must have all the elements • 
of a valid gift of the title either directly to the 
beneficiary, or to a trustee with the trusts def- 
initely settled, so that they can be fairly ex- 
ecuted by the court, by compelling the trustee 
to perform them." 

In Reeves v. Beeves the argument was 
made, as it is here, that the court would not 
suffer a valid trust to fail for want of a trus- 
tee, but this court said that rule had no ap- 
plication to a case like the one under con- 
sideration. Referring to the rule invoked, 
Judge Freeman observed: 

"Its usual if not universal application is to 
cases where a trustee is designated, who fails 
from any cause to act. Be this as it may, how- 
ever, it is not in this case the failure of a. 
validly created trust for want of a trustee, but 
the failure is to create the trust at all, or the 
failure of the gift entirely, because of want of 
capacity of the donee to receive, and no convey- 
ance to any one in trust for such party, with the 
objects of such trust defined." 

It is Impossible to believe that the court 
did not consider the propriety of the ap- 
pointment of trustees in Daniel v. Fain and 
Reeves v. Reeves. The purpose of the char- 
ities sought to be created in these cases had 
been expressly approved by the court in 
Dickson v. Montgomery — the relief of indi- 
gent ministers. Likewise, the purpose was; 
definite enough had trustees been interposed. 
If it had been possible to carry out the in- 
tention of the testator in either of these two 
cases by the appointment of trustees, it would 
no doubt have been done. Both wills, how- 
ever, we held ineffective in the particulars 
mentioned merely because the charitable 
provisions were not supported by trustees. 

In addition to what was said by the court 
in Reeves v. Reeves there is another reason 
why such a charitable bequest lacking a 
trustee cannot be saved in Tennessee. This 



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reason Is dearly brought out In Green v. 
Allen, but has been sometimes overlooked. 

In England the king, as parens patriae, was 
the constitutional trustee of all gifts to 
charity. Prior to the Statute of 43 Elizabeth, 
as well as thereafter, where a bequest for 
charity was general and indefinite In Its 
terms, and not to trustees, the title to the 
property vested In the king as father of his 
people, and by sign manual he provided or 
gave directions to the chancellor as to its 
proper execution. If the bequest was to trus- 
tees with general objects, or some objects 
pointed out, the charity was enforced by in* 
formation of the Attorney General who came 
into court representing the king, the con- 
stitutional trustee, and upon this informa- 
tion of the Attorney General, the chancellor 
referred the matter to a master to devise 
a scheme for carrying out the charity. 

In the case of Moggridge v. Thackwell, 7 
Vesey, 36, Lord Eldon made an exhaustive 
review of cases Involving charitable trusts, 
and concluded: 

"It is established that where money is (riven 
to charity generally and indefinitely without 
trustee or objects selected, the king, as parens 
patriae, is constitutional trustee * * * where 
there is a general indefinite purpose of charity 
• not fixing Itself upon any object, the disposi- 
tion is in the king by sign manual ; bnt where 
the execution is to be by trustees with general 
or some objects pointed out, the court will take 
the administration of the trusts." 

These conclusions of Lord Eldon were not- 
ed in Green v. Allen, and this court said: 

"All charities, not supported by trustees (un- 
less in favor of an individual or a corporation, 
having power to implead or be impleaded), if 
of a general indefinite purpose, are administered 
by the chancellor under the sign manual of the 
king. All charities supported by trustees, with 
general objects, or some particular object point- 
ed out, are administered by the chancellor !>■ 
original bill, upon information of the Attorney 
General, who acts for and in behalf of the king, 
and is a party thereto, and the jurisdiction in 
the two latter class of cases, arises out of dele- 
gated prerogative." v 

This court again said in Green v. Allen: 

"We have no parens patriae. We have no At- 
torney General representing the executive, who 
can, as such, give information by bill, for the 
establishing and enforcing of trusts for charita- 
ble purposes. And the necessary consequence 
is, that the superstructure must fall with the 
basis upon which it rested." 

In Oakley v. Long, the court saidi 
"We have no king, whose duty, and preroga- 
tive it is, as parens patriae, to take care of per- 
sons who have lost their intellects. Nor is there 
any department of our government which has 
the right to exercise the duties and powers 
which belong, in England, to the prerogatives 
oi the crown, unless those duties and powers 
have been conferred by statute." 

Where the beneficiaries of a charitable be- 
quest are uncertain as the poor of a par- 
ticular parish or young ministers of the 
Presbyterian Church, there is no one who has 
a right to bring suit respecting such a be- 
quest as representative of such beneficiaries; 
no one has sufficient interest therein except 
some such authority as parens patriae. This 
seems definitely settled by the lungllsh de- 



cisions reviewed in Green v. Allen, and others 
we will notice. 

One reason, therefore, that a trustee can- 
not be appointed to save a charitable trust In 
Tennessee where none is named, is that there 
has been cast upon no official or department 
of government in this state the authority and 
duties of parens patriae, and there is no one 
to represent the beneficiaries who can come 
into court and ask that such a trust in favor 
of persons incapable of suing be establish- 
ed and a trustee appointed. 

Mr. Daniell says: 

"If suit is 'instituted on behalf of the crown 
or of those who partake of its prerogative or 
whose rights are under its particular protection, 
such as objects of a public charity, the matter 
of complaint is offered to the court not by way 
of petition, but by information by tbe proper 
officer of the rights which the crown claims on 
behalf of itself or others and of the invasion or 
detention of those rights for wnlch the suit is 
instituted. This proceeding is then styled an 
information." 1 Daniell, Ch. Pr. 1. 

"Tbe Attorney General may exhibit informa- 
tions on behalf of individuals who are consid- 
ered to be under the protection of the crown 
parens patriae, such as the objects of general 
charities, idiots and lunatics." 1 Daniell, Ch. 
Pr. 8. 

"These suits are of course brought by the At- 
torney General as a queen's officer to protect 
the rights of those who partake of her preroga- 
tives."^ 1 Daniell, Ch. Pr. 8. 

Sir Joseph Jekyl said: 

"In case of charity, the king pro bono publico 
has an original right to superintend tbe care 
thereof, so that abstracted from the statute of 
Elizabeth relating to charitable uses, and ante- 
cedent to it as well as since, it has been every 
day's practice to file informations in chancery 
in the Attorney General's name for the estab- 
lishment of charities." Eyere v. Shaftesberry, 2 
Peer* Williams, 119. 

See, also, 3 Lewin on Trusts, marginal 
page 927 ; 2 Perry on Trusts, | 732. 

There are a number of English cases 'In 
which the chancellor declined to proceed 
where the application was for the establish- 
ment of charities by the appointment of 
trustees, or in other respects until the At- 
torney General was made a party. Tbe At- 
torney General is an indispensable party. 

Lord Kedesdale said: 

"Tbe right which the Attorney General has to 
file an information is a right of prerogative; 
the king as parens patriae has a right by his 
proper officer to call noon tbe several courts of 
justice according to the nature of their several 
jurisdictions, to see that right is done to his sub- 
jects, who are incompetent to act fdr themselves, 
as in the case of charities and other cases: the 
case of lunatics, where he has also a special pre- 
rogative to take care of the property of a luna- 
tic; and where he may grant the custody to a 
person, who, as a committee may proceed on be- 
half of the lunatic ; or where there is no such 
grant, the Attorney General may proceed by his 
own information." Attorney General v. Mayor, 
etc., of Dublin, 1 Bligh (N. S.) R. 312. 

In tbe case of Monil v. Lawson there was 
a bill filed respecting a charity, and it was 
objected to the prosecution of that suit that 
the Attorney General was not a party. The 
court held that the Attorney General was not 
a necessary party because trustees had been 



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appointed who were entitled to receive the 
fund and sue for it The Lord Chancellor 
said, however, that where a hill is brought 
to establish a charity, it must be brought in 
the name of the Attorney General ex necessi- 
tate rel because there are no certain per- 
sons entitled to it who can sue In their own 
names. Monil v. Lawson, 4 Viner's Abridg- 
ment, 501. 

In the case of Attorney General v. Vivian, 
1 Russell, 228, an information and a bill were 
both filed in respect to the charity. The 
Master of Rolls dismissed the bill because 
complainant failed to show an interest, but 
retained the information. 

In Cooke v. Duckenfield, which was a 
salt between some trustees and executors 
of the heirs, several matters were involved, 
but a general charity for widows and or- 
phans was In question, and the court ordered 
the Attorney General to be made a party to 
represent them. The court said at the outset 
of the opinion: 

"The bill must be amended, and the Attorney 
General, in behalf of the charity to widows and 
orphans of dissenters and to testator's poor rela- 
tions, must be made a party." CooKe v. Duck- 
enfield, 2 Atkyns, 564. 

In the case of Bayliss r. Attorney General, 
there was a charity devised in favor of 
"Bread Street Ward" of a city. The bill 
was brought by the aldermen and Inhabitants 
of the ward for the application of the char- 
ity, and the Attorney General was made a 
defendant The court said: 

"Though the alderman and inhabitants of a 
ward are not in point of law a corporation, yet 
as they have made the Attorney General a party 
in order to support and sustain the charity, I 
can make a decree." Bayliss v. Attorney Gen- 
eral, 2 Atk. 239. 

An Illustration of the proper way to estab- 
lish a charity where the trustee dies, dis- 
claims or falls, Is the Downing College Case. 
The testator there left property to trustees 
to establish Downing College at Cambridge. 
Before the college was established the trus- 
tees died. An information was then filed 
by the Attorney General upon the relation 
of Cambridge University for the setting up 
of this charity, which was decreed. Attorney 
General v. Downing, Ambler, 560, 671. 

Other cases from England in accord with 
the foregoing are Attorney General v. Her- 
rick, Ambler, 712; Da Costa v. Da Pass ft 
Attorney General v. Peacock, 27 English Re- 
print, 462; Mills v. Farmer, 1 Mer. 55; 
Reeve Attorney General, 8 Hare, 191. And 
see cases reviewed in Green v. Allen, supra. 

In those American cases which have con- 
sidered this question, it is likewise declared 
that a charity not supported by trustees 
can only be established in proceedings to 
which the Attorney General of the state is 
a party. 

In the Encyclopedia of Pleading we find 
the following: 

"Where the trust is for a public charity, there 
being no certain persons who are entitled to it, 
so as to be able to sue in their own names, as 



cestuis que trustent, a suit for having the char- 
ity duly administered must be brought in the 
name of the state, or Attorney General, and it 
seems that in all cases the Attorney General 
may maintain the suit without a relator." 22 
Enc. PL A Pr. 205. 

Judge Selden of New York made an ex- 
haustive examination of this question and 
said: 

"It is equally plain that where no beneficiary 
competent to sue was named, as where the trust 
was created in general terms, as to establish or 
found a public school, an asylum for the poor, or 
the like, without designating any particular per- 
sons or body of persons to be benefited, there 
was no legal means whatever, prior to the Stat- 
utes of Elizabeth and to the use of informations 
in the name of the Attorney General, of enforc- 
ing the execution of the use." 

Informations in the name of the Attorney 
General bring the king in his character of parens 
patriae before the court through his legal repre- 
sentative. The remedy is based on the ordinary 
Judicial power of the court combined with the 
prerogative right of the crown as parens patriaj 
to sue. Owens v. Missionary Society, 14 N. T. 
408, 67 Am. Dec. 160. 

The reason for such an action respecting 
charitable trusts must be brought in the 
name of the state or Attorney General is 
thus stated by the Supreme Court of Califor- 
nia: 

"The state, as parens patriae, superintends 
the management of all public charities or trusts, 
and, in these matters, acts through her Attor- 
ney General." People v. Cogswell, 113 Cal. 129, 
45 Pac. 270, 35 L. R. A. 269. 

The Supreme Court of Connecticut said In 
a case where a fund was bequeathed to the 
city of New Haven in trust for its poor, and 
the city refused the trust that it was prop- 
er for the state's attorney to apply for ap- 
pointment of trustees to administer it "in 
analogy to the English practice." Dalley v. 
New Haven, 60 Conn. 814, 22 AO. 945, 14 L. 
R, A. 69. 

Confirming the proposition that the Chan- 
cery Court can Interfere only In those juris- 
dictions where the government is held to suc- 
ceed to the prerogative of the crown, and 
where, as parens patriae, it Invokes the court's 
aid, the Supreme Court of the United States 
said In the Mormon Church Case: 

"The true ground is that the property given to 
a charity becomes in a measure public property, 
only applicable as far as may be. it is true, to 
the specific purposes to which it is devoted, but 
within those limits consecrated to the public use, 
and become part of the public resources for pro- 
moting the happiness and well-being of the peo- 
ple of the state. Hence, when such property 
ceases to have any other owner, by the failure 
of the trustees, by forfeiture for illegal applica- 
tion, or for any other cause, the ownership nat- 
urally and necessarily falls upon the sovereign 
power of the state; and thereupon the Court of 
Chancery, in the exercise of its ordinary juris- 
diction, will appoint a new trustee to take the 
place of the trustees that have failed or that 
have been set aside, and will give directions for 
the further management and administration of 
the property." Mormon Church Case, 186 U. S. 
69, 10 Sup. Ot 808, 84 L. EM. 481. 

There are cases in this country In which 
It has been stated broadly that a charitable 
trust will never be allowed to fall for want 



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191 SOUTHWESTERN REPORTER 



(Train. 



of a trustee, and lh which trustees have been 
appointed and other orders made without ref- 
erence to the Attorney General or without 
making the state, or the representative of 
the state, a party. We can only say of these 
cases that in our Judgment, they are not ful- 
ly considered. 

We have four cases In Tennessee holding 
It absolutely necessary that all the beneficia- 
ries of a trust be represented In any proceed- 
ings In which a trustee is appointed. In two 
of these cases It la said that the appointment 
of a trustee in ex parte proceedings where all 
those interested have not bad notice is ab- 
solutely void. Watklns v. Specht, 47 Tenn. 
(7 Cold.) 585 ; Williams v. Neil, 51 Tenn. (4 
Helsk.) 279; Taylor v. Chapman, 59 Tenn. 
(10 Helsk.) 46; Vincent v. Hall, 1 Shan. Cas. 
597. 

In Bransford Realty Co. v. Andrews, 128 
Tenn. 725, 164 S. W. 1175, the court thought 
perhaps these cases had gone too far and 
pointed out that the jurisdiction of a court of 
equity over a trust was a Jurisdiction quasi 
In rem, and the court had some discretion 
as to parties. We there held valid the ap- 
pointment of a trustee in proceedings to 
which remote contingent remaindermen were 
not parties. The immediate beneficiary of the 
trust was a parly, however, and it was never 
intended to be Intimated In Bransford Realty 
Co. v. Andrews, that the appointment of a 
trustee would be proper without any repre- 
sentation of the cestuis que trustent. 

Certain deductions seem inevitable from 
the foregoing authorities. 

[2] There can be no valid appointment of 
a trustee without notice to some, at least, 
of the beneficiaries of the trust, or some rep- 
resentation of them before the court 

[3] Where the beneficiaries of a charitable 
trust are not named, are at large, or are un- 
certain individuals of an unascertained class, 
no one of them has a right to sue or be sued 
respecting the trust, and no one is entitled 
to appear for them except parens patriae, or 
some official to whom that prerogative has 
been delegated. 

[4] In Tennessee no functionary has been 
Intrusted with the authority and duties of 
parens patrhe respecting charitable trusts. 
This power still inheres in the sovereign peo- 
ple. 

It follows that a case like the one before 
us cannot be presented to the chancellor in 
such a way as to permit him to appoint 
trustees and set up the charity undertaken 
by the will. Such a decree cannot be made 
because it is Impossible to get the necessary 
parties before the court. 

[6] Learned counsel for the trustees have 
no doubt been impressed with this difficulty, 
and, endeavoring to escape it, have made the 
Attorney General of Tennessee a party to - 
this suit, referring to Shannon's Code, f 5166, 
as authority for this procedure. That sec- 
tion Is as follows: 



"The action also lies to bring the directors, 
managers, and officers of a corporation, or the 
trustees of funds given for a public or charita- 
ble purpose, to an account for the management 
and disposition of property intrusted to their 
care; to remove such officers or trustees oa 
proof of misconduct; to prevent malversation, 
peculation, and waste; to set aside and restrain 
Improper alienations of such property or funds, 
and to secure them for the benefit of those in- 
terested; and generally to compel faithful per- 
formance of duty." 

The action referred to is one in the name 
of the state. 

This section of the Code presupposes the ap- 
pointment of trustees, and was passed to se- 
cure their performance of duty. It conferred 
no power upon the Attorney General to act as 
parens patrhe and Intervene or appear for 
the establishment of an invalid charitable 
trust It did not make the Attorney General 
a royal trustee of charities. Said section of 
the Code was taken from the Acts of 1845-46, 
and has never been supposed to do more than 
provide a method of enforcing the due admin- 
istration of charitable trusts lawfully created. 
The statute confers no more authority upon 
the Attorney General to set up and superin- 
tend the organization of a charitable trust 
than it does to organize a corporation. It 
provides a method for calling to account the 
trustees of one and the directors, managers, 
and officers of the other. It should be ob- 
served in this connection that it is upon the 
district attorneys general, not upon the At- 
torney General for the state, that the prin- 
cipal authority is conferred by this statute. 

We reserve the question of what may be 
done under this statute in a case where a 
charitable trust is lawfully created and title 
to the property has once vested in trustees 
named. It may be In such a case that the 
Attorney General can Intervene If the trus- 
tees named die or refuse to act and have oth- 
ers appointed in their stead. 

[I] We cannot, for the sake of harmoniz- 
ing our cases with what counsel conceives to 
be the majority rule, overturn all our deci- 
sions and uphold charitable devises such as 
this, regardless of the interposition of trus- 
tees. These decisions have become rules of 
property in Tennessee, and as such must be 
respected, if for no other reason. 

We have assumed in this discussion that 
the charitable trust undertaken herein was 
sufficiently definite, had it been supported by 
a trustee. What we have said makes it un- 
necessary to consider this question. 

There are some expressions In Heiskell t. 
Chickasaw Lodge and Johnson v. Johnson 
not altogether in harmony with what we 
have said in this opinion. The expressions, 
however, are pure dicta, and were not neces- 
sary to the decision of the questions before 
the court in those cases. In Heiskell v. 
Chickasaw Lodge there , was a trustee, and 
the trust was definite. In Johnson v.* John- 
son the trust was too indefinite to be saved 
at all, and it was so held by the court. 

Having concluded that the charitable trust 



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EWELL v. SX BED 



137 



attempted by the codicil to the wiU was In- 
valid, and. that the court cannot save it by 
the appointment of trustees, the question 
then arises as to the proper disposition of tbe 
estate. 

There is a contest between the heirs and 
distributees of Robert H. Shepherd and those 
of the testatrix, as before stated. 

It is insisted in behalf of the heirs and dis- 
tributees of the testatrix that the codicil was 
a revocation of the will; that accordingly 
Mary H. Ewell died intestate and her estate 
passed to them. 

On the other hand, it is said for the heirs 
and distributees of Mr. Shepherd that the 
codicil was not a revocation of the will; 
that when the codicil failed, the property 
passed to him under the residuary clause in 
the body of the will. 

The Court of Civil Appeals sustained the 
latter contention, and, we think, reached the 
correct result. 

[7] Ordinarily a will and a codicil are con- 
strued together, and a codicil will not be 
deemed a revocation of the will unless such 
an intention is expressed or Is necessarily 
implied. Ford v. Ford, 1 Swan (31 Tenn.) 
431; Ward v. Saunders, 2 Swan (32 Tenn.) 
174; Hornberger v. Hornberger, 12 Helsk. 
(59 Tenn.) 635; Reagan v. Stanley, 11 Lea 
(79 Tenn.) 316; Armstrong v. Douglass, 89 
Tenn. 219, 14 S. W. 604, 10 L. R. A. 85; 
Billlngton v. Jones, 108 Tenn. 238, 66 S. W. 
1127, 56 L. R. A. 654, 91 Am. St. Rep. 751. 

[I] If, however, It be conceded that this 
codicil was Intended as a revocation of the 
will, nevertheless such revocation was condi- 
tional and the case Is controlled by Stover 
v. Kendall, 1 Cold. (41 Tenn.) 661, and Cowan 
v. Walker, 117 Tenn. 135, 96 S. W. 967. 

In Stover v. Kendall it was said that: 

"Obliterations and interlineations are inop- 
erative to change a will, if made with a view of 
making a different disposition, which is not ef- 
fectually carried out. So, if such change of pur- 
pose is not carried out, because of sudden death, 
or any other cause, or the attempted disposition 
is invalid, the canceling of the first, being de- 
pendent thereon, is null [and void], and does not 



effect the revocation of the original will, but It 
will stand as it was before the cancellation." 

In Cowan v. Walker the court approved 
this language from Jannon on Wills, vol. 1, 
p. 294: 

"And it may be observed that, where the act 
of cancellation or destruction is connected with 
the making of another will so as fairly to raise 
the inference that the testator meant the revo- 
cation of the old to depend upon the efficacy of 
the new disposition, such will be the legal effect 
of the transaction; and, therefore, if the will 
intended to be submitted is inoperative' from de- 
fect of attestation, or any other cause, the revo- 
cation fails also, and the original will remains in 
force." 

Mr. Pritchard takes the same view in bis 
work on Wills and Administration, f 272. 

It appears in this case that Miss Ewell was 
more devoted to her uncle, Robert H. Shep- 
herd, than to any one else. She acknowledged 
and referred to her obligation to him in tbe 
will Itself. The two sisters mentioned In the 
will died before the execution of the codicil. 
The majority of the heirs and distributees of 
Miss Ewell lived in remote sections of the 
country, and she had little acquaintance 
with them. 

It is obvious, therefore, that she would not 
have revoked her will in favor of her uncle 
had she not supposed that the codicil in fa- 
vor of young ministers was valid. The revo- 
cation of the original will depended upon the 
efficacy of the codicil, as is clearly apparent 
from this record. The testatrix did not in- 
tend to deprive her uncle of anything or cut 
down the estate given him In favor of her 
heirs and distributees. Under our cases, we 
are accordingly satisfied that this codicil 
does not operate as a revocation of the will. 

The will, therefore, not having been re- 
voked by the codicil, and the codicil failing, 
the estate passed under the residuary clause 
of the will. Reeves v. Reeves, 5 Lea (73 
Tenn.) 644; Bradford v. Leake, 124 Tenn. 
313, 187 S. W. 96, Ann. Cas. 1912D, 1140. 

There is no error. In the opinion of the 
Court of Civil Appeals, and it will be af- 
firmed. 



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191 SOUTHWESTERN REPORTER 



(Tex. 



SMITH t. STATE. (No. 4326.) 

(Court of Criminal Appeals of Texas. Jan. 10, 
1917.) 

Criminal Law «=>1159(8)— APPEAL— CON- 
FLICTING EVIDENCE. 

A conviction on conflicting evidence will not 
be disturbed. 

[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. f 8076; Dec. Dig. «8=>1159(3).] 

Appeal from Bexar County Court; Nelson 
Lytic, Judge. 

Mrs. Kirby Smith was convicted for un- 
lawfully carrying a pistol, and she appeals. 
Affirmed. 

G. Grant White, of San Antonio, for appel- 
lant C. C. McDonald, Asst. Atty. Gen., for 
the State. - 

PRENDERGAST, J. This is an appeal 
from a conviction for unlawfully carrying a 
pistol, with the lowest punishment assessed. 

The sole question in the case Is whether 
or not the evidence was sufficient to sustain 
the conviction. The state Introduced two 
witnesses, one of whom testified positively 
that appellant did have and carry a pistol. 
He was strongly corroborated by the party 
he was with in some particulars. Appellant 
denied positively that she had the pistol at 
the time and place testified to by the state's 
witness, and her friend who was with her 
testified substantially to the same thing. So 
that It is seen that the state's testimony, if 
believed, unquestionably was sufficient to 
show the commission of the offense and au- 
thorized the verdict, while that of the ac- 
cused would have authorized the jury to have 
acquitted her. The Jury believed the state's 
witnesses, and we cannot disturb the verdict 

The judgment is therefore affirmed. 



PANHANDLE ft S. F. RY. CO. et si v. 
MORRISON etaL (No. 1061.) 

(Court of Civil Appeals of Texas. Amarillo. 
Nov. 29, 1916. Rehearing Denied 
Jan. 3, 1917.) 

1. Trial «j=»233(2)— Instructions— Pleading 
and Issues. 

It is the better practice for the trial court 
to summarize the pleadings on the issues to be 
determined, but to tell the Jury they would have 
the pleadings which they could look to for a 
statement of the pleadings, not leaving the is- 
sues to be ascertained by the jury, but telling 
them what issues they must find if supported by 
the evidence in order to find for the parties re- 
spectively, was a substantial compliance with 
the rule. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. | 528; Dec. Dig. <8=»233(2).] 

2. Trial #=255(2) — Instructions — Re- 
quests. 

A failure to summarize the pleadings on the 
issues to be determined is not reversible error, 
unless the complaining party requests an in- 
struction covering the omission in the general 



charge; as it is merely an omission, and not an 

error of commission. 

[Ed. Note.— For other Trial, Cent 

Dig. | 630; Dec. Dig. «=»256(2).] 

8. Appeal and Ebbob «=>760(1) — Brief — 
Charge— Obj ection. 
A brief nowhere showing when objections 
to the charge and to a failure to charge were 
made, and not pointing out the page or para- 
graph in which the court might find the particu- 
lar objection, leaving the court to go to the 
record and search a long bill of exceptions to 
find the objections made, did not comply with 
the rules so as to require consideration of the 
assignment 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. | 3095; Dec. Dig. «=»760(1)J 

4. Cabbiebs 9=9229(2)— Live Stock— Action 
fob Damages — Market Value. 

Where cattle were not shipped for immedi- 
ate sale on the market the measure of the ahip- 

Ser's damage from injury and delay was the 
ifference between the market price of the cat- 
tle in the condition in which they were delivered 
and what their market price would have been 
had they been properly cared for and handled 
during transportation. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. { 964; Dec Dig. «=>229(2).] 

5. Trial «J=»194(20)— Instructions— Weight 
of Evidence. 

In an action for damages to a shipment of 
live stock from injuries and delay, a requested 
charge as to the manner in which the cattle re- 
covered after the injury was a charge on the 
weight of the evidence. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. f 439; Dec. Dig. «=»194(20).] 

6. Trial «=>280(7) — Requested Instruction 
—Given Instruction. 

In an action for damages to a shipment of 
live stock where the court gave specially re- 
quested instructions covering the issues sought 
by another requested instruction, the refusal of 
the last instruction was proper. 

[Ed. Note.— For other cases, see Trial Cent. 
Dig. | 657 ; Dec Dig. <8=>260(7).] 

7. Carriers <8=>230(9)— Live Stock— Action 
for Damages— Instruction. 

In an action for damages to a shipment of 
live stock, the court did not err in refusing 
an instruction that the carriers were not insur- 
ers of the safe delivery of the live stock at any 
particular time, but were only bound to use ordi- 
nary care under ' the circumstances of the ship- 
ment 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. § 961; Dec Dig. <8=2S0(9).] 

8. Carrie bb «=»215(1)— Live Stock— Injury 
—Liability. 

If there was no unreasonable delay, no 
rough handling out of the ordinary or if the cat- 
tle were damaged owing to their nature or con- 
dition or other causes over which the carrier 
had no control, a carrier using ordinary care 
would not be liable. . 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. {923 ; Dec Dig. «=»215(1).] 

9. Appeal and Error <8=>768(2) — Briefs — 
Sufficiency. 

Where the brief does not show that a charge 
was presented at the proper time and exceptions 
properly taken to its refusal, an assignment of 
error in its refusal will not be considered. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. f 3093; Dec Dig. «J=»758(2).] 

10. Trial <8=»255(1) — Instructions — Re- 
quest. 

If appellant desired that a certain number- 
ed charge should be given instead of another 



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PANHANDLE A 8. F. KT. CO. V. MORRISON 



139 



numbered charge, it ought not to hare requested 
the latter. 

[Ed. Note.— For other cases, see Trial, Gent. 
Dig. §g 627-629; Dec. Dig. <S=255(1M 

11. Trial <8=»244(4) — Instructions — Sin- 
sun o out Facts. 

In an action for damages to a shipment of 
live stock, a requested charge singling out cer- 
tain facts which in part were claimed as an 
excuse .for the delay was properly refused. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. | 579; Dee. Dig. <8=»244(4).] 

12. Appeal and Ebbob «j=»742(5)— Assign- 
ment of Ebbob — Statement — Objections 
and Exceptions. 

Where the assignment itself was not a prop- 
osition, and the proposition thereunder was not 
relevant to the assignment, and the statement 
did not point to the paragraph where the objec- 
tion to a charge could be found or state whether 
the objection was the one contained in the as- 
signment or in the proposition, or whether the 
objections contained both, and aid not state that 
the objection was made and presented to the 
trial court before or after the charge, the court 
would not search the bill of exceptions to ascer- 
tain what objections were made to the charge 
and whether made In proper time. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. } 3000; Dec. Dig. «=>742(5).] 

18. Appeal and Ebbob «=»731(1)— Assign- 
ments op Ebbob— Vbbdiot. 
An assignment of error complaining that 
the verdict is excessive, made for the bearing it 
would have upon the other assignments pre- 
sented rather than with any expectation if it 
stood alone it would be sustained in the form 
presented, will be overruled for the reason giv- 
en therein. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. § 8017; Dec. Dig. «=>731(1).] 

Appeal from District Court, Hale County; 
R. C. Joiner, Judge. 

Suit by T. A. Morrison and T. J. Coggin, 
as partners, against the Panhandle ft Sante 
Fe" Railway Company and another. Judg- 
ment for plaintiffs, and defendants appeal. 
Affirmed. 

Terry, Cavin ft Mills, of Galveston, Geo. 
Thompson, of Ft. Worth, Madden, Trulove, 
Ryburn ft Pipkin, of Amarlllo, and L. R. 
Pearson, of Plalnview, for appellants. 
Matb.es ft Williams, of Plalnview, for appel- 
lees. 

HUFF, O. J. We adopt the following 
statement from appellants' brief, which we 
regard as sufficient statement of the case: 

"T. A. Morrison and T. J. Coggin, as part- 
ners, sue the Texas ft Pacific Railway Company 
and the Panhandle & Santa Fe Railway Com- 
pany, as common carriers owning connecting 
fines of railroad, to recover about $2,197.50 as 
damages alleged to have been by them sustain- 
ed as a result of injuries caused by the alleged 
careless and negligent handling and delays in 
transporting about 300 head of Mexico steers 
from El Paso to Plainview, Tex. A jury trial 
resulted in a verdict and judgment against the 
defendant Texas ft Pacific Railway Company 
for |600 and against the defendant Panhandle 
ft Santa Fe Railway Company for $1,000, from 
which both defendants appeal." 

[1, 21 The first assignment of error Is 
briefed on die thirty -sixth and thirty-sev- 
enth grounds assigned in the motion for new 



trial The proposition involved in the. as- 
signments is that the trial court erred In 
failing to state to the Jury what the Issues 
were by the pleadings, and In stating the 
pleadings would be with the jury, to which 
they were referred for a statement of the 
pleadings. In paragraph 3 the trial court 
submitted the Issues raised by the pleadings 
and evidence to be determined by the Jury In 
order to find a verdict for the appellees, and 
as to the other Issues for appellant specially 
requested Instructions were given. There 
was no special requested Instruction by the 
appellants calling on the court to give a 
proper summary of the Issues pleaded. As 
we understand the holdings in this state, It 
is the better practice for the trial judge to 
summarize the pleadings on the Issues to be 
determined; yet, if not done, It is not re- 
versible error, unless the complaining party 
shall request an Instruction covering the 
omission In the general charge. It Is mere- 
ly an omission, and not an error of commis- 
sion. Traction Co. v. Bradshaw, 186 S. W. 
962 ; Adams v. Southern Traction Co., 188 S. 
W. 276; Railway Co. v. Helm, 64 Tex. 147. 

The trial court did not tell the Jury to de- 
termine the issues from the pleadings which 
they would have before them, but only told 
the jury they would have before them the 
pleadings, which they could look to for a 
statement of the pleadings. He did not leave 
the Issues to be ascertained by the jury, but 
told them what Issues they mast find If sup- 
ported by the evidence In order to find for 
the parties respectively. It appears to be a 
sufficient compliance with the rule If the trial 
court submits to the Jury the questions of 
fact raised by the pleadings and instructs 
them upon the law as to the issues so raised. 
Railway Co. v. Smith, 24 Tex. Civ. App. 127, 
57 S. W. 999. The court substantially com- 
plied with this rule in this case. If there 
was any Issue omitted, the appellant should 
have submitted a special requested instruc- 
tion on that Issue. 

[S] The second assignment assails the 
charge of the court on the ground that it 
did not Instruct the Jury to consider the sub- 
sequent recovery of the cattle in estimating 
the damages, and was erroneous in giving 
the abstract rule as to the measure of dam- 
ages, that is, the difference between their val- 
ue In the condition in which they arrived at 
destination and the condition In which they 
should have arrived, and also in refusing an 
instruction to the effect that the Jury should 
take Into consideration whether the Injury 
was temporary or should have passed away 
within a reasonable time by the exercise of 
reasonable care upon the part of appellees. 
The charge of the court did not instruct up- 
on this matter, as complained ; and the trial 
court also refused the requested Instruction 
to that effect The brief does not show that 
the court's charge was objected to on the 



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191 SOUTHWESTERN REPORTER 



(Tex. 



grounds stated. The grounds of the motion 
for new trial which are purported to be cop- 
led as part of the assignment say as shown 
by bill of exception No. 1. The brief no- 
where showed when the objection was made. 
We must go to the record to ascertain the 
necessary facts as to when it was made and 
what the objection really was. The brief in 
this particular does not comply with the 
rules. The pages apparently referred to for 
the bill of exception No. 1 in one place re- 
fer to the page where we find the appeal 
bond and the other referred to shows that 
it is part of the motion for new trial. The 
objections to the charge of the court as set 
up by bill No. 1 is composed of some 30 par- 
agraphs covering 10 pages of the transcript. 
The appellant nowhere points out by its brief 
on what page or In which paragraph we 
will be enabled to find the particular objec- 
tion to the charge urged by this assignment. 
This court must, if we find the objection, 
search this long bill of exception, paragraph 
by paragraph, to find if the objections were 
really made before the main charge was read 
to the jury. The appellees herein strenuous- 
ly object to the consideration of this assign- 
ment, on the grounds stated, because of this 
defective briefing. We believe the objection 
to the assignment on this ground well taken. 
Again, as to the refusal of the instruction 
requested, the brief fails to show this in- 
struction was requested after the main 
charge was drawn and handed to the ap- 
pellants' attorneys for examination, and be- 
fore the case was submitted to the jury. 
The ground in the motion for new trial set- 
ting up this refusal of the instruction is cop- 
ied In the assignment and therein simply re- 
fers to bill of exception No. 5, without stat- 
ing what the bill shows with reference to 
this necessary precedent condition before er- 
ror can be assigned to the action of the 
court It was not error to refuse this in- 
struction if It was not presented to the court 
at the proper time. The assignment or state- 
ment in the brief must show that the action 
of the court was erroneous, and the assign- 
ment and statement fall short of the rules 
and statutes in this particular. The appe> 
lees object to this assignment upon the 
grounds mentioned, as they have the right 
to do, and we feel that it will be our duty to 
sustain the objections to the assignment 
- [4] We may say with reference to the is- 
sues sought to be presented by this assign- 
ment, assuming the facts are sufficient to 
show the cattle were not shipped for imme- 
diate sale on the market that it appears to 
have been decided adversely to appellants' 
contention. In Railway Co. v. Stanley, 89 
Tex. 42, 33 S. W. 109, the Supreme Court 
says: 

"It is insisted, however, that since the testi- 
mony showed that the cattle were not shipped 
for immediate sale, but were to be put upon 
pastures and fattened, and then sold, the court 
erred in charging the jury that the measure of 
the plaintiff's damages was the difference, be- 



tween the market price of the cattle in the 

condition in which they were delivered at El- 
gin and what their market price would have 
been at that place had they been carefully cared 
for during the trip, and that it also erred in 
refusing a charge to the effect that the plain- 
riff was entitled only to recover the amount of 
the additional expense to which he was sub- 
jected by reason of their injuries in preparing 
them for market We think the court gave the 
correct measure of damages. That the rule laid 
down is the ordinary rule * * * in this state 
and in other jurisdictions. We see nothing in 
this case to take it out of the ordinary rule." 

After quoting from Railway Co. v. Estill, 
147 U. a 591, 13 Sup. Ct 444, 37 It. Ed. 292, 
and further discussing the rule, the Supreme 
Court further said: 

"From a logical standpoint, the rule of the 
difference in market value is also the correct 
one. To make the plaintiff whole he should re- 
cover a sufficient sum to enable him to sell the 
injured property and to replace it with that 
which is uninjured, without loss." 

The charge requested in this case would 
have given a different role to the one estab- 
lished by the Supreme Court which must be 
and Is binding on this court and the trial 
court 

[S] Whilst evidence of recovery and the 
manner In which the cattle thrived after the 
injury is proper, perhaps, to go before the 
jury for their consideration In determining 
the injury actually received and the dam- 
ages sustained thereby, It does not follow 
therefrom that 'the court should single out 
this evidence and tell the Jury they should 
consider it The Courts of Civil Appeals, in 
passing on requested Instructions of this 
character, have held them to be charges on 
the weight of the evidence ; and we be- 
lieve properly so. Railway Co. v. Mulkey, 
169 S. W. Ill; Railway Co. v. Lindsey, 175 
S. W. 708; Railway Co. v. Holmes, 177 S. 
W. 606; Railway Co. v. Word, 51 Tex. 
Civ. App. 206, 111 S. W. 753; Railway Co,, 
v. Reed, 165 S. W. 4. This court has, on 
one or two occasions, held It proper to give 
such a requested charge, but a more careful 
consideration leads us to the belief that the 
rule established by the Supreme Court will 
not sanction the practice, but that such a 
charge violates the statute which prohibits 
a charge on the weight of the evidence. 
Aside, from the general rule, this particular 
charge, in our opinion, Is especially objec- 
tionable as being on the weight of the evi- 
dence, and is also argumentative in its con- 
struction. 

[I] The third assignment is subjected to 
the same objections as the second assign- 
ment above considered. The trial court gave 
specially requested instructions asked by ap- 
pellant Nos. 9 and 11, which covered the is- 
sues sought by requested instruction No. 
12, for the refusal of which the assignment 
herein Is based. It would. have been im- 
proper to give requested charge .No. 12 or 
to have repeated the same in the main 
charge, after having given the other two 
(marges. 



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PANHANDLE * B. F. 



BT. CO. v. MORRISON 



Ul 



[7] The fourth assignment is amenable to 
the same objection as to the second. How- 
ever, the court did not err In refusing the 
third specially requested charge. This 
charge sought to have the court instruct the 
jury the appellants were not insurers of the 
safe delivery of live stock at any particular 
time, but only to use ordinary care under 
the circumstances of the shipment The 
charge of the court only permitted a recov- 
ery upon proof of negligence, and also gave 
the sixth and eighth specially requested In- 
structions. The sixth instruction was to the 
effect that, If the jury should find that ap- 
pellants were negligent In handling the cat- 
tle, yet they would not consider any dam- 
ages which resulted from the weak and poor 
condition or from the Inherent nature, vices, 
or propensities. The eighth Instruction de- 
fined rough handling and told the jury not 
to take into consideration any damages 
which were the result of usual or natural 
rough handling necessarily Incident to han- 
dling cattle in freight trains, and that they 
would not find any damages for rough han- 
dling unless they believed appellants "failed 
to exercise ordinary care" In handling the 
cattle and cars In which the cattle were 
transported. Negligence was defined by the 
court in the main charge, and the jury were 
also told In order for the appellees to recov- 
er the jury we^e first required to find unrea- 
sonable delay, and that such unreasonable 
delay was negligence on the part of appel- 
lants. There was no recovery sought or 
submitted because the cattle were not deliv- 
ered at any particular time. The charge of 
the court, together with the special Instruc- 
tions given, we think, submitted fully and 
fairly the law applicable to the case. With- 
out setting out this requested charge, we also 
agree with appellee that It was upon the 
weight of the evidence. 

[3] We may say, however, If there was no 
unreasonable delays, no rough handling out 
of the ordinary, or Uiat the cattle were dam- 
aged owing to their nature or condition, or 
by causes over which the carrier had no con- 
trol, and If the carrier used ordinary care, 
there could be no recovery. The trial court 
so told the jury in the charges given, and to 
have further charged the Jury that the car- 
riers were not Insurers against those things 
would have added nothing to the strength 
of the charge. 

[1,19] The fifth assignment of error is 
subject to the objections that the brief does 
not show that charge No. 10 was presented 
at the proper time and exceptions properly 
taken to its refusal. The objection of appel- 
lees will be sustained to this assignment 
However, we do not helleve there was any 
error in refusing the requested instruction, 
especially in view of the charges, both gen- 
eral and special, given on the entire case, and 
particularly requested instruction No. 9, on 
substantially the same issue sought to be 
submitted by charge No. 10. If the appel- 



lants desired that No. 10 should be given in- 
stead of No. 9, they ought not to have re- 
quested No. 9. It was unnecessary, we think, 
to give both. 

[11] The sixth assignment is not properly 
briefed for the reasons heretofore pointed out 
under the preceding assignments. We think 
that appellees' objection to the statement 
under this assignment should be sustained. 
The charge requested Is clearly on the weight 
of the evidence singling out certain facts 
which In part were claimed as an excuse for 
the delay. These acta so singled out were 
not all which it is claimed contributed to 
the delay, and to have designated such acts 
and then tell the jury if they found such acts 
not to consider such delay was error under 
the Issues In this case. 

[12] The seventh assignment should not 
be considered, for the reasons pointed out 
by appellees in their objection. The assign- 
ment Itself Is not a proposition. It would 
authorize the presentation of the proposition 
that the charge authorized a double recovery 
of damages because there were several 
grounds of recovery stated in the charge, and 
that some of the elements are Included In and 
are part of the other elements. In the mo- 
tion for new trial, the basis of this assign- 
ment is grounds Nos. 60 and 51, both of 
which are Involved and prolix. There Is but 
one proposition under this assignment; that 
Is, that the charge by Its enumeration of 
the various grounds of alleged negligence 
thereby "unduly emphasizing and placing 
before the jury the Idea that the court 
thought there were undu.e delays and undue 
holdings of cars," etc. The proposition is 
not relevant to the assignment and was not 
Included therein. The statement under this 
assignment says the appellants objected to 
the court's charge for these and other rea- 
sons, "as will appear from the list of such 
exceptions, being termed bill of exceptions 
No. 1, beginning on page 31, and extending to 
page 41, in the transcript" This bill is com- 
posed of some 30 paragraphs. This state- 
ment does not even point us to the paragraph 
where the. objection can be found, or state 
whether the objection was the one in the as- 
signment or the one contained in the proposi- 
tion, or whether the objections contained 
both. It does not even inform us that the 
objections were made and presented to the 
trial court before or after the charge was 
given to the jury. It will take no argument 
to show the brief as to this assignment nei- 
ther compiles with the rules nor the statute. 
We do not feel called upon to search this 
long bill of exceptions to ascertain what 
objections were made to the charge and 
whether made in proper time. 

[13] The eighth assignment complains the 
verdict Is excessive. The appellants conclude 
their brief with an argument In which they 
say they are complaining of the excesslveness 
of the verdict for the bearing it' will have 
upon the other assignments presented, "rath- 



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142 



191 SOUTHWESTERN REPORTER 



(Tex. 



er than with any expectation that If It stood 
alone it would be sustained In the form pre- 
sented." This assignment Is overruled for 
the reasons given by appellants. 
The case will be affirmed. 



PANHANDLE & S. F. RT. OO. et al. 
VAUGHN. (No. 1059.) 

(Court of Civil Appeals of Texas. Amarillo. 
Not. 29, 1910. On Motion for 
Rehearing, Jan. 3, 1917.) 

1. Trial <g=194(20) — Instructions — Sin- 
olino Out Evidence. 

Id an action for damages to a shipment of 
cattle, a requested charge that, if the cattle were 
damaged when unloaded as a result of failure to 
transport them with reasonable care and dis- 
patch, but the damages were temporary and 
such as should have been overcome within a 
reasonable time by the exercise of reasonable 
care on the shipper's part, the jury in estimat- 
ing the damages should consider their temporary 
nature and the decree to which the cattle would 
have recovered with proper care and handling 
by the shipper should be. refused, because on the 
weight of the evidence. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. i 439; Dec. Dig. «=al94(20).] 

2. Gakkhis ®=>228(3)— Live Stocx— Damag- 
es— Evidence. 

In such action evidence as to temporary 
damages to the cattle and the degree to which 
they would have recovered with proper care and 
handling by the shipper was admissible upon the 
real injury and as affecting the question of dam- 



[Ed. Note,— For other cases, see Carriers, 
Cent Dig. | 900; Dec. Dig. «=»228(3).] 

3. Appeal and Bbbob «=230— Objections 
at Trial — Evidence — Timely Objection. 

In an action for damages ,to a shipment of 
live stock, where the shipper testified that his 
cows were worth $5 less in the condition they 
were on arrival than if they had arrived in rea- 
sonably good condition, an objection, after he 
had fully answered, without any request to have 
the testimony stricken from the record, was too 
late to afford a ground of exception. 

[Ed. Note.— For other cases, see Appeal and 
Error, Dec. Dig- <8=»280; Trial, Cent Dig. § 
183.] 

4. Trial «=252(7)— Instruction— Applica- 
bility to Evidence. 

In such action a charge not to consider any 
application or order for cars made at one point 
to be furnished at another point as binding upon 
the defendant held properly refused as inappli- 
cable to the evidence. 

[Ed. Note.— For other cases, see Trial Cent 
Dig. § 002; Dec. Dig. «=»252(7).] 

5. Trial <3=»191(11)— Instruction— Assump- 
tion of Fact— Negligence — Loading Live 
Stock Shipment. 

In an action for damages to s shipment of 
live stock from delay, etc., a requested charge 
that the jury should not consider damages to the 
cattle by reason of the cows and calves being 
loaded in the same car was properly refused, 
as it assumed thst it would be negligence to load 
them together, and excluded the question of 
ordinary care in so loading them. 
[Ed. Note.— For other cases, see Trial, Cent 
| 481; Dec. Dig. <8=>191(11).] 



0. Carriers <8=230(12>— Live Stock— Action 

for Damages. 
In such action the submission of the measure 
of damages based on their msrket value at a 
certain point Keid warranted by the evidence as 
to their market value at such point 

[Ed. Note.— For other cases, see Carriers. 
Cent Dig. g 901; Dec. Dig. «=»230(12).] 

7. Carriers 228(3)— Live Stock— Action 
for Damages— Evidence. 

In such action evidence as to the time in 
which a witness had made a shipment over the 
same roads as far as a certain point was ad- 
missible, where the testimony showed that the 
conditions connected with the shipments were 
similar. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. f 900; Dec Dig. «=»228(3).] 

8. Carriers 218(8) —Live Stock — Action 
for Damages— liability. 

A carrier must use ordinary care to prevent 
injury to cattle while in the pens awaiting ship- 
ment after acceptance for transportation if 
such care, feeding, etc., becomes necessary on 
account of a delay, notwithstanding the contract 
of shipment required the shipper to care for the 
cattle while in the pens awaiting shipment. 

[Ed. Note. — For other cases, see Carriers, Cent. 
Dig. §§ 674-090, 927,928; Dec.Dig. <8=>218(8).] 

9. Appeal and Error cj=>1067 — Harmless 
Error— In structio ns— Refusal. 

In an action for damages to a shipment of 
live stock, the refusal of defendant's charge 
that if it had a train on which the shipment 
could have moved at a certain time, and that 
the movement of the cattle then would not have 
constituted an unreasonable delay, and that they 
would have been moved then if the shipper had 
not agreed that they might remain in the pens, 
a verdict should be found for defendant in view 
of a similar general charge, and of the fact that 
some time intervened between the time the cat- 
tle were penned and the agent's conversation 
with the owner, if erroneous, was harmless. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. g 4229; Dec. Dig. «=>1067; 
Trial, Cent Dig. f 475.] 

10. Appeal and Error «=>1050(1)— Harmless 
Error— Admission of Evidence. 

In an action for damages to a shipment of 
live stock from delay in transportation, etc, 
error, if any, in permitting an experienced ship- 
per to testify that the cattle were damaged by 
delay in the pens, in view of the verdict, was 
harmless. 

[Ed. Note.— For other cases, see Appeal and 



Error, Cent Dig. « : 
Dec Dig. «=»1050(1).] 



1008, 1009, 



4157; 



On Motion for Rehearing. 

11. Appeal and Error «s»171(1)— Presenta- 
tion of Question — Requested Charge — 
"Change of Theory." 
Where appellant submitted specific grounds 
embodied in a peremptory charge why it should 
be submitted to the jury, he cannot on appeal 
sustain the charge upon another and different 
ground not presented in the trial court 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. 1 1058; Dec Dig. «=>171(1).J 

Appeal from District Court, Hale County; 
R. C Joiner, Judge. 

Action by Tom Vaughn against the Pan- 
handle & Santa Fe Railway Company and 
others. Judgment for plaintiff, and defend- 
ants appeal. Affirmed. 



«t=>For other < 



I see same topic and KBIT -NUMBER In all Key-Numbered Digests sad Indexes 



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Texj 



PANHANDLE 6 8, F, RT. 00. y. VAUGHN 



143 



Terry, Cavln & Mills, of Galveston, Baker, 
Botts, Parker & Garwood, of Houston, H. S. 
Garrett, of San Angelo, Madden, Trulove, 
RTburn & Pipkin, of Amarillo, and C. E. 
Mays, Jr., of San Angelo, for appellants. 
Mathes & Williams, of Plain view, for appel- 
lee. 

HENDRICKS, J. The appellee, Tom 
Vaughn, seed the Galveston, Harrlsburg & 
San Antonio Railway Company, the Kansas 
City, Mexico & Orient Railway Company of 
Texas, and the Pecos & Northern Texas Rail- 
way Company to recover damages on account 
of a shipment of cattle from Mart a, Tex., to 
Plain view, Tex., alleging twenty-six hours' 
delay at Marfa on the part of the Galveston, 
Harrlsburg & San Antonio Railway Company, 
In loading out said cattle after receiving the 
same, and five hours* delay on the line of the 
Pecos & Northern Texas Railway Company 
at Sweetwater, Tex., before unloading them 
at such point, and an additional delay by 
said company of five hours after the same had 
been reloaded before they were forwarded 
from Sweetwater. It Is averred that 15 
head of the cows died, of the value of $56 
each, also 5 head of calves died, of the value 
of $10 each, and that the remainder of the 
shipment was Injured to the extent that they 
were worth $5 less than they would have been 
If properly transported. 

Upon the submission of a general charge 
the jury found against the defendant Galves- 
ton, Harrlsburg; & San Antonio Railway Com- 
pany the sum of $286.26, and against the de- 
fendants Pecos & Northern Texas Railway 
Company and the Panhandle & Santa Fe 
Railway Company the sum of $795, and in 
favor of the defendant Kansas City, Mexico 
A Orient Railway Company, in accordance 
with a peremptory instruction of the court 

The Panhandle & Santa Fe Railway Com- 
pany became a party defendant by an amend- 
ment, in which it is alleged that the Pecos 
A Northern Texas Railway Company had 
changed its name to that of Panhandle ft 
Santa Fe Railway Company. 

[1,2] The defendant seasonably requested 
the trial court to give the folio wing special 
charge, No. 7, the refusal of which is com- 
plained of by the first assignment of error: 

"Although yon may believe from the evidence 
that plaintiff's cattle were damaged when un- 
loaded at Plainview, Tex., and further believe 
that such damages, or any portion thereof, re- 
sulted from the failure of defendants to trans' 
port said cattle with reasonable care and dis- 
patch, yet If you farther believe that such dam- 
ages were of a temporary nature and such. as 
ahoold have passed away or been overcome with- 
in a reasonable time by the exercise pf reason- 
able care on the part of the plaintiff for his cat- 
tle, then in estimating the damages to plaintiff's 
cattle which were not dead upon arrival at 
Plain vie w, if you find that any .of his cattle were 
damaged,, you shall take into consideration the 
temporary nature of such! injuries and "damages, 
sad the* degree to which said cattle would have 
recovered afjer arrival at Plainview, with the 



exercise of proper care and handling by the 
plaintiff." 

The above charge is in a different form 
from most of the charges of a similar char- 
acter, and has embodied within it a different 
element (that of ordinary care on a collateral 
issue) than we are able to find passed upon 
by the higher courts. Ordinarily a charge of 
this nature, passed upon by the appellate 
courts, is one Instructing the jury that they 
may take into consideration any subsequent 
recuperation or recovery of weight or shrink- 
age in estimating plaintiff's damages. 

The above question has been much mooted 
and considerably discussed in the appellate 
courts of this state, and we have concluded 
that the better rule is that such a charge 
should be refused because it is on the weight 
of the evidence in singling out a part of the 
same and giving undue prominence thereto. 
The testimony, of course, is admissible as 
relevant to the real Injury to the cattle and 
as affecting the question of damages, measur- 
ed by the difference in the market value. 
This question was considered by this court in 
the case of Panhandle & Santa Fe Railway 
Co. v. D. H. Norton, Appellee, 188 S. W. 1011, 
decided October 18, 1918. The general charge 
of the court in that case was in effect that in 
arriving at the amount Of the damages the 
jury could take into consideration the ques- 
tion of the recovery, and if they found and 
believed that the animals entirely recovered, 
and after such recovery were of the same or 
greater market value as they would have been 
If such inlury had not occurred In the first 
Instance, to find against the plaintiff and in 
favor of the defendant. The Panhandle at 
Santa Fe Railway Company complained of 
that charge, and, while the court held the 
charge erroneous, it was held that it was a 
charge benefiting the defendant, and not the 
plaintiff. The rejected special Instruction 
herein Is, in effect, that if the jury believed 
that the damages or Injuries were of a tem- 
porary nature and such as should have passed 
away or been overcome within a reasonable 
time, by the exercise of ordinary care on the 
part .of • the plaintiff In handling his cattle, 
they "shall take into, consideration the tem- 
porary nature of such Injuries and damages 
and. the degree to which said cattle would 
have recovered after arrival at Plain view 
with the exercise of proper care and handling 
by. the plaintiff.'' The injected element of a 
recovery based Upon the hypothetical exer- 
cise of proper care and handling by the plain- 
tiff .would have .been wholly erroneous to have 
submitted to the. Jury. The degree to which 
(he cattle would have recovered, with the 
exercise of proper care and handling by, the 
owner, would have been a collateral issue, 
and the reaj merits of the case could have 
been switched to the extent as to wholly con- 
fuse the jury in arriving at a just verdict 
^. .charge of a similar , character Is also dis- 
cussed In the case of Panhandle & Santa Fe 



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144 



191 SOUTHWESTERN REPORTER 



(Tex. 



Railway Company et at v. Morrison, 191 S. 
W. 138, decided. this day, November.29, 1916, 
by this court, except that the question of 
ordinary care on the part of the owner, also 
Injected into that charge, is not adverted to. 
Those two cases cite the numerous authori- 
ties on the general question. 

[3] The plaintiff, Tom Vaughn, was permit- 
ted to testify over the objection of defendants 
that his cows were worth $5 less in the con- 
dition they were In on arrival at Plainview 
than they would have been worth had they 
been in reasonably good condition when they 
arrived at destination. The trial court quali- 
fied the bill of exceptions, which qualification 
Is not shown by appellant's statement that: 

"No objection was made to the testimony or 
answers until witness had fully testified on the 
point interrogated about, and then no request to 
have said testimony stricken from the record 
was made." 

We have found many authorities discuss- 
ing questions approximating the particular 
question, but very few that decide the exact 
point The bill of exceptions does not show 
any reason why appellants' attorneys waited 
until the answer had been fully made before 
the objection was expressed. The bill shows 
that the questions were explicitly framed, at 
least sufficiently so to apprise counsel of the 
nature of the answer attempted to be elicited. 
Justice Hurt said: 

"But, concede their incompetency, the ques- 
tions to this witness were not so framed as to 
preclude objections when the evidence was ad- 
mitted by the defendant, and he will not be per- 
mitted to speculate on the answers." Gonzales 
v. State, 30 Tex. App. 203, 16 S. W. 981. 

Circuit Judge Adams, in the case of Rail- 
way Co. v. Duke, 192 Fed. 809, 112 C. C. 
A. 667, uses the following language: 

"After the answer was. given, the defendant 
for the first time objected to the question and 
answer and on adverse ruling saved an excep- 
tion. This practice of permitting a question to 
be answered without objection, and, if perchance 
the answer be unfavorable, to then object to both 
-question and answer, is not proper or fair prac- 
tice. It permits a party to speculate on the 
chances of a favorable answer before committing 
himself against the question." 

See Jones on Evidence, Blue Book, vol. 5, 
f 893, p. 867. 

[4] The fourth assignment of error com- 
plains of the refusal by the trial court of the 
following requested charge: 

"Ton are charged not to consider any applica- 
tion or order for cars made at Alpine, Tex., by 
the plaintiff or his agent, to be furnished at 
Marfa, as binding upon the defendants in this 
case." 

The cattle were purchased by Vaughn from 
one Gist- Gist was to deliver the cattle in 
the pens at Marfa preparatory for shipment, 
and an order was made for cars at Alpine, 
another and different station, in some manner 
communicated to the agent of the Galveston, 
Harrisburg & San Antonio Railway Company 
at Marfa. The trial court charged the jury 
that, if the defendant Galveston, Harrisburg 
& San Antonio Railway Company, as alleged 



in the petition, received and accepted the cat- 
tle for transportation, and "after receiving 
and accepting said cattle for transportation"' 
unreasonably delayed the loading or ship- 
ping of said cattle, etc., to find for the plain- 
tiff. Gist -testified that he had a talk with 
the agent of the Galveston, Harrisburg & 
San Antonio Railway Company at Marfa, 
and was told that the cars would be ready 
the next morning, June 11th, at Marfa. He 
also testified that the agent told him to get 
the cattle and put them in the pens and that 
he would have a train there to take them 
out when they got them in the peas. Gist's 
broker or agent at Alpine, it seems, had 
made the particular trade and sold the cattle 
to Vaughn. Gist also testified: 

"We asked the agent about the cars, and I 
think, if I am not mistaken, he said the cars 
had been ordered by the agent who sold my 
cattle tp Mr. Vaughn from Alpine." 

The agent, Hubbard, of the Galveston, 
Harrisburg & San Antonio Railway Company 
at Marfa, testified: 

"The cattle were placed in the pens at Marfa 
by the parties in charge before the bills of lad- 
ing were issued. The cars for these cattle were 
ordered on the 9th of June. That was the 
first information I bad. The order was placed 
at Alpine, and I was informed of it. * * * 
The shippers told me the cattle were on the road 
into Marfa on the 10th of June, and that they 
would be in. Marfa the next day, and they told 
me on the 11th of June at 1:20 p. m., I believe 
it was, that they would be there in half an hour, 
and they got there, as they told me, at 320. I 
made a record of these things." 

It is shown without controversy that the 
agent was acting upon the application for the 
cars made at Alpine, and acquiesced in to 
that extent that the special charge mentioned 
above, If submitted to the Jury, would have 
been inappropriate. The authorities cited by 
appellants do not apply to this character of 
case. 

[S] The appellants complain in their fifth 
assignment of error of the refusal of the 
trial court to submit a special charge to the 
Jury that they should not consider any dam- 
ages caused to the cattle "by reason of the 
cows and calves being loaded and mingled in 
the same car." This charge assumes that it 
would be negligence to load cows and calves 
together, and does, not submit to toe Jury the 
propriety or question of ordinary care In 
loading cows and calves In the same cars. 

The sixth assignment of error Is overruled 
for the same reasons presented for overrul- 
ing the fourth assignment 

[I] The only proposition under the seventh 
assignment of error presents the following 
complaint: 

"The court was not authorised to submit the 
measure of damages contained in paragraphs 5 
and 8 of the main charge, because there' was no 
evidence as to the market value of such cattle at 
Plain-view, Tex., at the time arid in the condi- 
tion that they actually arrived." 

Paragraphs S and 8 of the court's charge, 
each addressed to the measure of damages 
applicable to the Galveston, Harrisburg & 



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PANHANDLE A S. I". JRY. OX v. VAUGHN 



145 



San Antonio and the Panhandle & Santa F4, 
were in form a correct charge on that sub- 
ject. The appellants In their assignments as- 
sert that subdivision "C" of paragraph 2 of 
their written objections and subdivision "C" 
of paragraph 4 of their written objections 
complain of the respective paragraphs of the 
court's charge. The objection In each In- 
stance is "because there Is no competent tes- 
timony to prove the measure of damages ap- 
plicable to this case." The point made in the 
proposition is that there was. no evidence as 
to the market value of the cattle at Plain- 
view at the time and In the condition that 
they actually arrived. A general objection 
of the nature indicated would be of very lit- 
tle avail to a trial court for the purpose of 
correcting any supposed error, for the rea- 
son that In a record of this kind and a trial 
of this length a trial court could readily say 
that there was competent testimony tending 
to prove the measure of damages applicable 
to the case. The particular point In the 
proposition was not presented to the trial 
judge. However, the plaintiff, Vaughn, did 
testify: 

"I was familiar with the value of such cows 
as these at Plainview at that time. Cattle were 
selling here then from $66 to $60. Cows such 
as these were worth $60 at that time." 

There was considerable testimony of Inju- 
ry to the cattle on account of their shrink- 
age resultant from the delay. As shown, 
Vaughn testified they were worth $6 per 
bead less than they would have been worth 
if they had arrived at Plainview in a reason- 
ably good condition. The assignment is over- 
ruled. 

[7] The witness Gist, while testifying in 
behalf of the plaintiff, stated that in May, 
1914, be made a shipment from Marfa, Tex., 
to Littlefleld, Tex., over the same roads as 
plaintiff's shipment, as far as Lubbock, Tex., 
and said that they made the shipment in less 
than 36 hours. This testimony was objected 
to for the reason that one shipment made by 
the witness In May would not tend to fix 
a standard or prove whether defendants were 
negligent in handling plaintiff's cattle, and 
because it was not shown that witness' cat- 
tle were shipped under similar conditions, 
the same number of cars, in the same kind 
of train, and that said witness was not quali- 
fied to say what would have been an ordinary 
run from Marfa to Plainview. 

The only proposition, however, under the 
eighth assignment is that: 

"It was error to permit said witness to testi- 
fy as to the time made by another of defendant's 
trains, in the absence of a showing that the con- 
ditions connected with said shipment and said 
train were similar." 

The trial court also qualified this bill by 
stating that the witness had testified that 
his shipment came over the same road from 
the initial point as far as Lubbock, and then 
gave the distance from Lubbock to Littlefleld, 
the latter being the destination of witness' 
shipment, and also the distance from Lub- 
191 S.W.-10 



bock to Plainview, and further testified that 
he was with the Vaughn shipment as far as 
Sweetwater, and that the trains carrying 
each of these shipments were the same. Ap- 
pellants say: 

"The qualification by the court is not sup- 
ported by the record, in that the witness no- 
where testified to the distance from Lubbock 
to Plainview, or that the trains carrying the 
shipments were the same." 

This witness testified as to the distance 
from Lubbock to Plainview in this manner: 

"It is 39 miles from Lubbock to Littlefleld, 
and they call it 48 miles from Lubbock to Plain- 
view." 

He also said: 

"The train on which Mr. Vaughn's cattle were 
carried was about the same kind of train as 
the one on which my cattle were transported in 
May." "My cattle were on a fruit train over 
the Orient, and Tom's was too." 

The real question asked this particular 
witness to which objection was made was: 

"Do you remember, or can you recollect, how 
long yon were in shipping, how long these cattle 
were in being shipped from Marfa to Lubbock?" 

The comparison really was as to the time 
taken In making the two runs over the same 
roads from Marfa to Lubbock. If the simi- 
larity of conditions is an ingredient to the 
materiality of this testimony, we think the 
same were sufficiently similar for that pur- 
pose, as shown by the testimony. The as- 
signment is overruled. 

[I] The plaintiff requested special charge 
No. 1, which was given by the court to the 
jury as follows: 

"You are charged that it was the duty of de- 
fendant the Galveston, Harrisburg & Sun An- 
tonio Railway Company to use ordinary care 
to prevent injuries to plaintiff's cattle while 
same were in the pens awaiting shipment after 
they bad been received and accepted by said de- 
fendant for transportation, and if after said 
cattle were received by said defendant for trans- 
portation, it became necessary that said cattle 
should be fed to prevent injury, and said defend- 
ant did not use ordinary care to feed said cattle, 
and such failure was negligence, and because 
of such failure, if any, plaintiff's cattle were in- 
jured, then said defendant would be liable to 
plaintiff for all damages if any, caused said 
cattle by such failure, if any, of said defendant" 

It was objected that the charge was er- 
roneous because the defendant was not charg- 
ed with the legal duty to feed plaintiff's cat- 
tle while in the pens awaiting transporta- 
tion ; because by the terms of the written con- 
tract the plaintiff was expressly enjoined 
with the duty to take care of and feed his 
cattle while in the pens at Marfa awaiting 
transportation ; because the special charge 
absolutely ignores the fact that it was the 
plaintiff's duty to exercise ordinary care to 
feed his cattle while in the pens at Marfa, 
and ignored defendant's defense of contribu- 
tory negligence in this respect ; because the 
charge Ignores the issue as to whether or not 
the plaintiff agreed or acquiesced In the 
delay at Marfa, and places the duty upon 
the defendant, regardless of whether plaintiff 
consented to the delay at Marfa and under- 



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146 



191 SOUTHWESTERN REPORTER 



(Tex. 



took to care for the cattle himself. However, 
the only propositions under this assignment 
are as follows: 

First "It was error for the court to give such 
special charge because the same places upon the 
defendant Galveston, Harrisburg & San Antonio 
Railway Company the duty to care for and feed 
plaintiff's cattle while in the pens, when the 
testimony is conflicting as to whether or not 
said defendant had received said cattle for 
transportation." Second. "It was error • * * 
because, as a matter of law, it was plaintiffs 
duty to feed and care for his cattle until they 
had been received by the Galveston, Harrisburg 
& San Antonio Railway Company for immedi- 
ate transportation, and the testimony in this 
case shows that said cattle were not so received 
by defendant until the 12th of June, 1914." 

It Is noted that the special charge did not 
devolve the duty upon the railway company 
to feed and care for the cattle, unless It be- 
came necessary to do so, and not until after 
they had been received and accepted by the 
defendant for transportation. These cattle 
were placed In the pens on the 11th at Marfa 
for shipment, and were not shipped until the 
12th. The agent of Galveston, Harrisburg 
& San Antonio testified that they were 
brought in and placed In the pens at 8:20 
p. m., and that the shipper reported them 
ready for shipment at that time on the Utb. 
It Is shown that the order for the cars re- 
ceived by him from Alpine on the 9th of 
June waa really accepted by him for that 
purpose. He testified that the shippers told 
him that the cattle were on the road Into 
Marfa on the 10th of June, and would be 
there the next day, and that he made a rec- 
ord of all these things. Gist, representing 
the plaintiff, testified that he had a talk with 
the agent at Marfa on the morning before 
the cattle were brought In (the 10th), and 
the agent told him the cars would be ready 
the next morning (the 11th) at Marfa; that 
the agent said to go ahead and get the cattle 
and that they would get out as soon as he 
got them in; that the agent told him to go 
ahead and get the cattle and put them In the 
pens and that they would have a train there 
to take them out when they got them in the 
pens, and they remained in said pens there- 
after for about 80 hours. There Is not the 
slightest testimony in this record that the 
Galveston, Harrisburg & San Antonio Rail- 
way Company's agent In any -manner refused 
to receive the cattle as a representative of 
the carrier at the time they were placed In 
the pens. It is clearly Inferable that at first, 
as between the agent and the other parties, 
there was every expectation of an Immediate 
shipment It Is true this agent testified: 

"The cattle were in the pens and partly in 
the cars at Marfa when I first saw them.*' 

However, there was considerable done and 
said previous to that time with reference to 
the penning of the cattle and the expectation 
of shipment We do not think the testimony 
1s conflicting as to whether the defendant re- 
ceived the cattle for transportation ; neither 
do we think that the testimony shows that 



the cattle were not received by the defend- 
ant's agent until the 12th of June, 1914, as 
raised in the two propositions mentioned. 
The contract was not signed until the cattle 
were loaded. 

"The duty of feeding and watering the cattle, 
if it became necessary on account of the delay, 
devolved upon defendants while the cattle were 
awaiting shipment in their pens, notwithstand- 
ing the fact that the contract of shipment con- 
taming the provisions set out above was offered 
in evidence. The company's responsibility at- 
taches as soon as the cattle are delivered to it 
in its pens, after Which time a failure to exer- 
cise ordinary care on its part to prevent injury 
would render it liable in damages to the own- 
er." Railway Co. v. Crawford, 146 S. W. 330, 
and authorities therein cited. 

The ninth assignment is overruled. 

[t] The tenth assignment of error Is a 
complaint of the trial court's refusal of de- 
fendant's special charge No. 13, which was, 
in substance, that if the jury believed from 
the testimony that the Galveston, Harrisburg 
& San Antonio Railway Company had a train 
on which the shipment could have moved at 
about 4 o'clock In the afternoon of June 11, 
1914, and that the movement of the cattle at 
the time would not have constituted an un- 
reasonable delay on the part of the Galveston, 
Harrisburg & San Antonio Railway Com- 
pany, and that said defendant would have 
moved plaintiff's cattle on said train had it 
not been for the acquiescence on the part of 
plaintiff, Vaughn, that said cattle remain in 
the pens at Marfa until the next day, in or- 
der that they might be transported without 
unloading at Alpine, Tex., a verdict should 
be returned In favor of the Galveston, Har- 
risburg & San Antonio Railway Company. 

The trial court In his general charge In- 
structed the jury: 

"But you are further charged that you can- 
not find against said defendant for any damages 
suffered by plaintiff's cattle, if any, because of 
plaintiffs agreeing to or acquiescing in the 
suggestion of the defendant's agent that the 
cattle be hot shipped from Marfa to Alpine on 
the 11th day of June." 

The plaintiff and his witness Gist testified 
that these cattle were penned about noon; 
the agent testifying that they were penned 
about 320 p. m. on the 11th, according to 
the report made to him by the shipper. As 
stated, the cattle did not leave Marfa until 
the next day for alpine, at which point they 
were to be delivered to the Orient, a connect- 
ing carrier. The plaintiff further testified 
that the agent at Marfa Informed him that 
there would be po need to make a shipment 
of cattle on the Uth, as he would not make 
the connection at Alpine, and he was inform- 
ed of this fact late In the evening after they 
had penned the cattle and failed to get a 
train. If we Interpret the statement of facts 
correctly, If plaintiff had shipped his cattle 
to Alpine on the 11th, there Would have beesi 
no train at that place on the Orient for the 
purpose of forwarding the cattle; hence they 
would have had to have been unloaded again 
and reloaded for the continued transpafrta- 



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Tex.) 



PANHANDLE & B. F. BY. CO. v. VAUGHN 



147 



Hon. The primary cause of the delay, from 
plaintiff's theory, was the failure to Imme- 
diately ship the cattle by the Galveston, Har- 
risburg & San Antonio Railway Company 
when they were placed in the pens for that 
purpose. It is noted that there was about 
30 hours' delay at Marfa, and the jury only 
returned a verdict of $286-26 against the 
Galveston, Harrisburg & San Antonio, though 
returning a verdict of $786 against the Santa 
F& If the cattle would have had to have 
been unloaded at Alpine on the 11th, there 
would have been more Injury on that ac- 
count than to have stayed in the pens at 
Marfa. It is clear from the record that there 
was some period of time intervening between 
the time the cattle were penned and the con- 
versation that occurred between the agent 
and the owner of the cattle on the afternoon 
or evening of that date. There is, of course, 
a technical difference between the two charg- 
es, the one requested by the defendant Galves- 
ton, Harrisburg & San Antonio Hallway Com- 
pany and the one given by the court, but it is 
unlikely that any injury accrued to the de- 
fendant on account of the refusal of its 
charge. The tenth assignment is overruled. 

[10] Reverting to the third assignment of 
error, it is complained that the trial court 
should not have permitted the witness Gist 
to testify, over the numerous objections of 
the defendant, "that by reason of the delay 
In the pens at Marfa he would consider that 
the plaintiff's cattle were damaged about $2* 
or $3 per head." The first proposition as- 
serts that this was an opinion and conclusion 
of the witness and inadmissible on that ac- 
count; the second, that the testimony was 
inadmissible because it is not a proper meth- 
od of proving the measure of damages; the 
third, because from the witness' own state- 
ment he was shown not to be qualified to 
give the testimony. This witness had more 
than 25 years' experience in the cattle busi- 
ness. At the time of the trial he owned and 
conducted four ranches, had bought and sold 
a great many cattle, and had had consider- 
able experience in shipping cattle, and had 
made several shipments of cattle from the 
station at Marfa, two of which were in the 
section of country In which Plain view was 
situated. He testified: ' 

That holding the cattle in the pens at Marfa 
affected their flesh and strength and rendered 
then> less fit to stand the shipment. "The hold- 
ing of these cattle at Marfa in the pens injured 
them— holding them there and starving them for 
twenty-six hours. It was bound to weaken 
them. It decreased their flesh and weakened 
their condition, and that would certainly affect 
their market value. If these cattle had gone 
on to Plainview without suffering any injuries, 
except such as cattle necessarily suffer, they 
would have been worth less at Plainview than 
they would have been worth had they not been 
held in the pens at Marfa go long. From my ex- 
perience as a shipper, considering the distance 
these cattle were shipped and the condition they 
were in, these cattle could have been shipped 
from Marfa to Plainview, and should have ar- 
rived there in ordinarily good condition. I don't 
tee why they could not 



While this witness' testimony assigned as 
erroneous Indicates that he hesitated consid- 
erably in delivering his opinion, and at one 
period in the examination stated that he 
could not give it because he had not seen 
the cattle at Plainview when they arrived 
there, it is, however, evident from the ex- 
perience of this witness as a cattleman and 
as a shipper be had a conception of what 
would constitute a usual run as to this par- 
ticular shipment. He was with these cattle 
during the time of the delay at Marfa, and 
did not leave the train until they arrived at 
Sweetwater, where they were delivered to 
the Santa Fe for transportation to Plainview. 
The jury on account of the small verdict 
against the Galveston, Harrisburg ft San 
Antonio evidently took Into consideration the 
alleged acquiescence of Vaughn, the owner of 
the cattle, to the agent's statement at Marfa 
in holding them from the 11th to the 12th 
for shipment. The shipper had already testi- 
fied that the cattle were damaged some $5 
per bead, and the market value of the par- 
ticular cattle at Plainview at the time of de- 
livery was sufficiently shown. If the admis- 
sion of this testimony could be held to be 
technically erroneous, which we seriously 
doubt, considering, however, the whole rec- 
ord, we likewise think with reference to this 
assignment that the testimony was wholly 
harmless. 

It is unnecessary to discuss the eleventh 
assignment of error, which is practically a 
review of the whole case and of the same 
matters raised in previous assignments. 

The judgment of the trial court is affirmed. 

On Motion for Rehearing. 

Complaint is made in the motion tor re- ' 
hearing that we merely overruled the 
eleventh assignment of error, with the state- 
ment that said assignment raised questions 
disposed of and discussed under other as- 
signments of error. It is said In addition to 
the questions raised by preceding assign- 
ments that the eleventh assignment raises 
the question of a release clause In the ship- 
ping contract pleaded by the appellant Gal- 
veston, Harrisburg & San Antonio Railway 
Company of all claims for damages occurring 
prior to the loading of the cattle. 

The particular question we did not dis- 
cuss, because It was 'not raised by the as- 
signment. The third proposition under this 
assignment does assert that all damages aris- 
ing prior to the signing of the written con- 
tract were released, for a consideration, in a 
particular provision of that contract. The 
assignment, however, Is a complaint of the 
refusal of the trial court of a peremptory 
instruction requested by the Galveston, Har- 
risburg tc San Antonio - Railway Company. 
It Is to be noted that the special charge had 
appended to it, as suggestions, and as advis- 
ory instructions to the trial Judge, five dis- 
tinct grounds why a peremptory verdict 



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148 

should be returned by the jury, and not one 
of them raises the question that the shipper, 
by a special contract, released all damages 
accruing prior to the time the written con- 
tract was signed and the cattle were loaded 
at Marfa. The peremptory instruction, with 
the live grounds asserted therein for the per- 
emptory verdict, with a motion in hsec verba 
for new trial based thereupon, and the as- 
signment necessarily predicated literally up- 
on the same, and not including the particular 
proposition, excludes the point 

The trial court In his general charge sub- 
mitted only the liability of the defendants 
based upon their duty as a common carrier. 
Appellant's brief in this court does not com- 
plain, one way or the other, as to any omis- 
sion In not submitting a written contract to 
the jury. Plaintiffs pleaded an antecedent 
oral contract to the written contract with the 
usual allegations that the latter was signed 
after the cattle were loaded, and the court 
did not submit, so far as we are advised, the 
written contract. Whether the trial court 
regarded the oral contract as proven neither 
are we Informed by the briefs, and there Is 
no complaint In that respect of the general 
■charge of the court. 

[11] In this condition for appellant to sub- 
mit specific grounds embodied in a peremp- 
tory charge why the same should be submit- 
ted to the jury, and In this court to then 
assert a proposition to sustain the charge 
upon another and different ground never- 
presented to the trial court, will not be con- 
sidered, especially in view of the record. 



THOM v. FIRST NAT. BANK OF NEW 
BOSTON. (No. 1687.) 

{Court of Civil Appeals of Texas. Texarkana. 
Dec. 6, 1916. Rehearing Denied 
Jan. 4, 1917.) 

Usubt «=»141 — Penalty — Right to Re- 
cover. 

The maker of a note for the purchase price 
of land who paid no usurious interest, and no 
more than he agreed to pay for the land, can- 
not recover the penalty for usury from a bank 
to which the note was transferred in payment of 
a previous note of the payee which did include 
usury. 

[Ed. Note.— For other cases, see Usury, Cent. 
Dig. i 427 ; Dec. Dig. <8=141.] 

Appeal from District Court, Bowie County ; 
H. F. O'Neal, Judge. 

Action by the First National Bank of New 
Boston against J. A. Thorn. Judgment for 
plaintiff on Its action, and denying relief to 
defendant on his cross-action, and defendant 
appeals. Affirmed. 

J. B. Manning, of New Boston, for appel- 
lant Johnson A Boswell, of New Boston, for 
appellee. 

LEVY, J. Appellee sued J. A. Thorn, as 
maker, and J. M. Smith, M. J. Smith, and 
Ann Smith, as indorsers, of two notes ex- 



(Tex. 

ecuted by J. A Thorn In part payment of the 
purchase price of 57 acres of land. One of 
the notes was. for $220, and the other for $70, 
each due and payable to the order of James 
M. Smith on November 1, 1914. James M. 
Smith, in the due course of trade and for a 
valuable consideration, transferred the notes 
by indorsement to the bank. 

J. A. Thorn by cross-action sought to re- 
cover of the bank the penalty for alleged 
usurious interest The court sustained a 
demurrer to the cross-action. And the ques- 
tion for review on appeal Is only as to the 
ruling of the court in sustaining the demur- 
rer. 

It is believed that there was no error In 
the ruling of the court. It does not appear 
from the allegations in the cross-action that 
appellant paid any usurious interest When 
appellant executed and delivered to Smith, 
as part of the purchase price of the land, the 
note, such note became the absolute prop- 
erty of Smith. And when the bank accepted 
the note from Smith In payment of the alleg- 
ed previously executed note charged to be 
usurious, then the bank received and collect- 
ed from Smith, and not appellant the alleged 
usurious Interest. The effect would be to 
make Smith the person paying usurious in- 
terest if the Interest was usurious at all. 
Roberts v. Coffin, 22 Tex. Civ. App. 127, 53 
S. W. 597 ; Taylor v. Sturgis, 29 Tex. Civ. 
App. 270, 68 S. W. 538; Taylor v. Shelton, 134 
S. W. 302. And it does not appear that ap- 
pellant was paying for the land a greater 
sum than be obligated himself to pay unto 
Smith, his vendor. Association v. Hay, 23 
Tex. Civ. App. 98, 56 S. W. 580; Association 
v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 
825. 

This judgment is affirmed. 



RICHARDSON et al. v. GENERAL ASSEM- 
BLY OF THE CHURCH OF THE 
LIVING GOD et al. (No. 7649.) 

(Court of Civil Appeals of Texas. Dallas. Jan. 
6, 1917.) 

1. Religious Societies <8=»25 — Interference 
— Injunction, 

In suit by the General Assembly of a church 
to restrain former preachers of a congregation 
from interfering with the congregation's use of 
its church property, evidence, although jaome- 
what conflicting, held to conclusively show that 
defendants were so acting as to disturb the con- 
gregation by interfering with the affairs of the 
church as to its control and peaceful manage- 
ment 

[Ed. Note.— -For other cases, see Religious So- 
cieties, Cent Dig. Si 154-167; Dec. Dig. <8=»25.] 

2. Religious Societies «=»4— Incobfobatior 
—Acq uiebcence. 

Where a church was operating under a char- 
ter adopted by a large majority of its members 
and for some time acquiesced in by defendants, 
it had a right to proceed without interference 
from defendants, whether or not the provisions 



191 SOUTHWESTERN REPORTER 



dtesFor other cases see same topic and KEY-NUMBER In all Key-Numbered DlgnU and Indexes 

Digitized by Google 



Tex.) RICHARDSON v. GENERAL ASSEMBLY OP THE CHURCH, ETC. J.49 



of the charter ware is accord with the ideas 
of defendants. 

[Ed. Note.— For other cases, see Religious So- 
cieties, Cent Dig. U 3, 6-14; Dec. Dig. «=>4.] 

Appeal from District Court, Henderson 
County; John S. Prince, Judge. 

Salt by the General Assembly of the 
Church of the Living God and another 
against W. H. Richardson and another. 
From judgment for plaintiffs, defendants ap- 
peal. Affirmed. 

W. R. Bishop and J. J. Faulk, both of 
Athens, for appellants. E. P. Miller, N. 
Frank Faulk, and W. L. Faulk, all of Athens, 
for appellees. 

RAINET, 0. J. This Is a suit by appellee 
the General Assembly of the Church of the 
Living God and Charlie Chase against ap- 
pellants W. H. Richardson and J. S. Pendle- 
ton, seeking to restrain "the defendants, or 
either of them, from further using or in any 
wise interfering with the plaintiffs' use and 
enjoyment of said property and premises." 
A writ of injunction was issued. 

Appellants answered by general demurrer 
and various special exceptions, by general de- 
nial, and specially that appellant Richard- 
son was a minister of the Church of the Liv- 
ing God; that he in 1905 organized and es- 
tablished a local church in Athens ; that un- 
der his administration and work said church 
grew and rapidly increased in membership, 
so much so that they needed a place of 
worship, and in February, 1916, he and oth- 
er members of said church bought the lot and 
built the house, and that the same was then 
and there dedicated exclusively for religious 
purposes; that the deed was made to Chas. 
Chase, Berry Miller, and Benny Boggess, 
as trustees for such church, to be held by 
them and their successors in office; that 
Richardson and Pendleton were members of 
said church and have been ever since in good 
standing; that defendants have the right to 
hold said church for the purpose of worship, 
and that plaintiffs are attempting to change 
and pervert said property to other and dif- 
ferent uses than that for which it was In- 
tended when bought and paid for; that the 
procuring of the charter by the General As- 
sembly was a cunningly devised scheme to 
take said property, etc., and that it was done 
without the consent of the Church of the Liv- 
ing God. It was further pleaded that de- 
fendants and those with them had the right 
to take possession and control said premises, 
etc. 

A trial was bad on the merits, and judg- 
ment was rendered in favor of plaintiffs upon 
peremptory Instructions given by the court; 
the injunction was perpetuated and defend- 
ants restrained from occupying or attempt- 
ing to occupy said church building, or inter- 
fering with plaintiffs' free use and enjoyment 
of the same In conducting the affairs of said 



church. From this Judgment an appeal was 
taken. 

Conclusions of Fact. 

The Church of the Living God Is a reli- 
gious organization of the negro race. Its 
church government is composed of a General 
Assembly and local congregations. The Gen- 
eral Assembly holds annual meetings and 
consists of delegates and preachers from all 
the local churches, and was organized over 
20 years ago. Local congregations in church 
affairs act in accordance with the rules of 
the General Assembly, which is similar to the 
Methodist Conference, or the Presbyterian 
Church in General Assembly or Synod. It ap- 
points preachers for the local churches, usu- 
ally respecting the nomination made by the 
local church. 

The local church of the Living God was es- 
tablished in Athens about 10 years ago by 
the General Assembly of said church. The 
organization has been continuously kept up 
ever since ; preacher and deacons selected an- 
nually In accordance with the rules and reg- 
ulations of the General Assembly. The Rev. 
L. G. Snell was the local preacher for and 
during the year 1914, and was returned by 
the General Assembly for the year 1915. 
From December 22 to 27, 1914, the General 
Assembly of said church was in session at 
Greenville, Tex.; while in session there the 
Revs. W. H. Richardson and J. S. Pendleton, 
the defendants in this suit, now appellants, 
were called on, as were all other preachers, 
to settle with the General Assembly for all 
collections made by them during the church 
year, and to pay all back Indebtedness. A 
resolution was passed that all falling to do so 
should be silenced. On this resolution being 
passed the two defendants, the Revs. Rich- 
ardson and Pendleton, tendered their resig- 
nations, which were accepted, and they im- 
mediately left the General Assembly before it 
adjourned. Defendant Richardson came im- 
mediately to Athens, stating he had been sent 
by the General Assembly to start a revival 
meeting at Athens, that many of the other 
preachers were coming right on from the As- 
sembly to assist in it, and that the Rev. 
Pendleton would arrive on the next day. The 
day defendant Richardson arrived, he preach- 
ed that night, a collection was taken up for 
him ; he then and there obtained the consent 
of the congregation present and one of the 
deacons to carry on the revival until the 
preacher and delegates should return from 
the General Assembly, and announced that 
the Rev. J. S. Pendleton would preach there 
in the church the next night (Monday). Dur- 
ing Monday defendant Richardson went 
around, saw several members, among others, 
Deacon Blanton, and invited them out to 
hear Rev. Pendleton preach, saying they were 
going to have a business meeting that night 
and elect new officers. Rev. Pendleton came, 
Richardson being present, and, as announced, 
Pendleton preached. After preaching def end- 



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191 SOUTHWESTERN REPORTER 



(Tex. 



ant Pendleton asked all who were not mem- 
bers of the church to retire, saying that he 
was going to hold a business meeting and 
elect new officers, but Deacon Blanton pro- 
tested, blew out the lights, and stopped the 
business meeting; the local preacher, Snell, 
some of the deacons and delegates to the Gen- 
eral Assembly still being absent On the next 
evening (Tuesday) the bell rang again, and 
the crowd turned out to the meeting. By this 
time the deacons and delegates had got back 
from the General Assembly, and Martin, the 
assistant local preacher for Athens, got up 
that night to preach, and defendant Rich- 
ardson got up in the pulpit in front of him 
and said he (Richardson) was going to 
preach. The deacons tried to get Richardson 
to sit down; he would not, and they phoned 
for Sheriff Morrow, who went, found the 
congregation in an uproar, arrested Richard- 
son standing in the pulpit in front of Preach- 
er Martin. The sheriff said the crowd all 
seemed to be against Richardson. The as- 
sistant preacher (Martin) preached after 
Richardson was arrested and taken off. Aft- 
er preaching Martin announced he would 
preach there again the next night (Wednes- 
day), and on Wednesday night both defend- 
ants, Richardson and Pendleton, were there 
sitting up in the pulpit. The meeting ran on 
all the week, Martin preaching, Richardson 
and Pendleton being there present And 
every night after adjournment Richardson 
would announce that he would preach there 
the next -night And one night In front of 
the church he halloed out loud that he was 
going to preach there the next night. One 
night during the meeting one of the deacons 
took a vote of the church on the question 
for all "who wanted to retain their preach- 
er, Rev. Snell, and stand by the constitution 
of the church to stand up, and, after seating 
them, requested all that were opposed to 
stand up, and the vote stood 44 to 16 in favor 
of the church organization and retaining 
their preacher, Snell. The last night that 
Martin preached Richardson still announced 
that he would preach there the next night 
and occupy the church, and they got the city 
marshal, Plnkerton, to keep order until they 
could get Judge Prince to grant an injunc- 
tion. The night the city marshal was there 
Is when they took the vote whlc^i stood 44 to 
16. The deacons forbade Richardson and 
Pendleton preaching, and had to sue out an 
injunction to stop them. * * * On the 
26th day of July, 1913, acting under appoint- 
ment from the General Assembly, then being 
held in Marlln, Tex., several of the preach- 
ers, Including the defendants, Richardson and 
Pendleton, drew up a charter incorporating 
the General Assembly; the purpose as set 
out in said charter was: 

"For the protection of its property; organise 
and baild church houses, chapels, auditoriums, 
and all other church edifices necessary for the 
dissemination and furtherance of the gospel 
truths and maintaining of orphanages and wid- 



ows' homes ; purchase, own and hold all proper- 
ty bought bequest or otherwise (under its corpo- 
rate name) by any of its members or any person 
whomsoever; for maintenance of religious and 
charitable purposes; the said property shall for- 
ever be owned, controlled, and governed solely 
and exclusively for the purposes herein con- 
tained." 

This document was forwarded to the secre- 
tary of state for his action. He returned it 
saying the purposes did not comply with the 
statute referring the committee to subject 2, 
art 642, R. S. (now subject 2, art 1121, R. 
S.), which he said would designate the cor- 
poration for which they were praying. Act- 
ing on this suggestion the subcommittee im- 
mediately went before Ben M. Richardson, 
an attorney at law at Athens and a notary 
public, and* had him to draw the charter In 
accordance with the Instructions from the 
honorable secretary of state. The purpose 
as made out by him under said section of 
the statute read as follows : 

"The purpose for which it is formed the sup- 
port of any benevolent, charitable, educational 
or missionary undertaking." 

This was immediately on the 15th day of 
August 1913, filed in the office of the secre- 
tary of state. In this charter is Included the 
names of the two defendants, Richardson 
and Pendleton, as trustees, and this is the 
charter the church has been acting under 
ever since it was filed in the office of the 
secretary of state, August 15, 1913. The doc- 
trines of the church were in no way changed, 
nor the church management and the General 
Assembly went along meeting as it had be- 
fore, each local church sending up its dele- 
gates and preachers as before, appointed to 
their respective charges. After the charter 
was issued in August 1913, both defendants, 
Richardson and Pendleton, went right on 
and worked under it without complaint Aft- 
er the charter was issued in August 1913, a 
General Assembly was held right in Athens, 
a few months later in December, 1S13, at 
which said charter was voted on and adopted, 
both defendants, Richardson and Pendleton, 
were present at said December, 1918, General 
Assembly and continued working under this 
charter until December, 1914, at Greenville, 
when they resigned after being called upon 
to make settlement of funds in their hands. 
The books of the local secretary of the local 
church at Athens show that there are 106 
members, and secretary testified that 88 of 
that 106 members were for retaining the 
church organisation as it was then being car- 
ried on and their preacher, L. G. Snell, and 
only 18 in favor of defendants and Richard- 
son. 

Conclusions of Law. 

[1] (1) The first assignment of error com- 
plains of the court for giving a peremptory 
instruction to the jury to find for the plain- 
tiffs, contending that the testimony was 
conflicting, and that the evidence falls to 
show the acts which authorised the writ of 
injunction. There is some conflict in the tee- 



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KBUEGBR GULF, a * ». F. BT. CO. 



151 



tlmony of some of the witnesses on immate- 
rial matters, bat we axe of the opinion that 
It conclusively shows that the defendants 
were so acting as to disturb the congregation 
by interfering with the affairs of the church 
as to its control and peaceful management. 
Plaintiffs had the right of possession of the 
property and a right to conduct their worship 
and control their affairs as they saw proper, 
without Interference of defendants In any 
way. Richardson and Pendleton, although 
preachers, were not employed by the local 
congregation at Athens, nor were they acting 
under instructions of the General Assem- 
bly. 

[2] (2) Whether or not the provisions of 
the charter were In accord with the Ideas of 
the defendants we think Immaterial. The 
local congregation had the right to proceed 
under the charter without Interference from 
defendants, which It had agreed to do by a 
large majority of its members. 

(3) There are numerous assignments of 
error and propositions submitted by appel- 
lants, which we have considered, but are of 
the opinion that after all the evidence Is 
considered, none warrant a reversal of the 
case, and that a proper verdict has been 
rendered. 

The Judgment is affirmed. 



KRUEGER, County Judge, et at v. GTJI/F, C 
& S. F. BY. 00. (No. 7763.) 

(Court of Civil Appeals of Texas. Galveston. 
Dec 8, 1916. Rehearing Denied 
Jan. 25, 1917.) 

1. Dedication «=>37 — Street — Acceptance — 
evidence. 

Where a recorded map of a town designated 
a street on each side of a railway reservation 
as if extending over and across it, and where 
the street, running through the center of the 
town, bad been used as a thoroughfare for more 
than 30 years by travelers on foot and horse- 
back, and by wagons, except heavy wagons, 
there was an acceptance of the part of the 
street which crossed the railroad track. 

[Ed. Mote.— For other cases, see Dedication, 
Cent Dig. K 73, 74; Dec. Dig. «s>87.] 

2. Dedication <S=>19(6) — Map ob Plat — 
Streets— Effect. 

The laying out of a town into blocks, lots, 
and streets and the making of a plat showing 
such streets, which plat was acknowledged and 
recorded, and the sale of lots by reference to 
it, was a dedication of such streets to those 
purchasing the lots, snd to the public. 

[Ed. Note.— For other cases, see Dedication, 
Cent Dig. « 86, 46; Dec. Dig. «=»19(5).] 

Appeal from District Court, Austin Coun- 
ty ; Frank S. Roberts, Judge. 

Suit fpr injunction by the Gulf, Colorado 
& Santa Fe Railway Company against C. G. 
Krueger, County Judge of Austin County, 
Tex., H. Waak and others, County Commis- 
sioners, and Theo. Broslg, Road Overseer of 
the Public Highways in the Town of Sealy. 
Judgment for plaintiff, and defendants ap- 



peal. Reversed, and judgment rendered for 
defendants. 

W. L Glenn, of BeUville, W. I. Hill, of 
Sealy, and C G. Krueger, of BelMUe, for 
appellants. Terry, Cavin & Mills and A. H. 
Cuiwell, all of Galveston, for appellee. 

LANE, J. This Is a suit brought by the 
Gulf, Colorado & Santa Fe Railway Com- 
pany, appellee, against C. G. Krueger, county 
judge of Austin county, Tex., H. Waak, H. 
Peters, J. E. Scbaffner, and Herman Sehroe- 
der, county commissioners of said county, 
and Theo. Broslg, road overseer of the public 
highways In the town of Sealy, in said coun- 
ty, to enjoin and restrain them, their suc- 
cessors In office, agents, and attorneys, from 
opening Third or Main street in said town 
over and across the right of way of said ap- 
pellee company. 

Appellee alleged in its original petition 
that on January 23, 1880, Col. Walter G res- 
ham and George Sealy platted and subdivid- 
ed the land upon which the town of Sealy is 
located In blocks, lots, streets, and alleys, 
and reserved a strip of land 200 feet wide 
through said town for a right of way for a 
railroad ; that they made a plat of said town 
site, acknowledged It, and had the- same duly 
recorded in the deed records of Austin coun- 
ty, Tex., on the 9th day of April, 1880, and 
that all sales of lots were made by said 
Gresbam & Sealy with reference to said re- 
corded plat or map; that among others of 
said streets so laid out and designated Is 
one known as Third or Main street; that 
the property of the Gulf, Colorado & Santa 
Fe Railway Company was designated upon 
said plat or map, and said Third or Main 
street did not extend through or across the 
reservation of said railway company; and 
that it was never intended by the then own- 
ers of said land prior to the dedication by 
them of said railway reservation, nor by 
said railway company, that said Third or 
Main street should extend through said res- 
ervation. 

The defendants in their answer alleged 
that on January 23, 1880, the town of Sealy 
was laid out, platted, and a map thereof 
made, duly acknowledged In the manner and 
form required by law, and was recorded In 
the Deed Records of Austin County, Tex., in 
volume X on page 6 ; that at the time said 
town was laid out and platted the same was 
laid off in blocks, lots, streets, and alleys 
dedicated by the then owners of said land 
and premises upon which said town of Sealy 
is located ; said streets and alleys were dedi- 
cated for public use and have been used by 
the public as streets and alleys for a great 
number of years ; that said, town as laid out 
had streets dedicated between the blocks 
running from north to south and from west 
to east as shown by said plat of said town ; 
that in the center of said town as platted Is 



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191 SOUTHWESTERN REPORTER 



(Tex. 



a street 100 feet In width running from west 
to east across the right of way of plaintiff, 
which said street was designated and known 
as Third or Main street; that said street is 
the main thoroughfare of the town of Sealy, 
and has been the main thoroughfare of said 
town ever since the same was laid out, plat- 
ted, and dedicated. 

A jury was duly selected and sworn to try 
said cause, but after the pleadings of the 
respective parties were read, and all the evi- 
dence had been introduced, the trial judge, 
upon his own motion, withdrew the case 
from the jury and entered judgment perpetu- 
ally enjoining and restraining appellants 
from opening or attempting to open a high- 
way across appellee's railroad opposite what 
is known on the map pleaded by both parties 
as Third or Main street of said town of 
Sealy. . From this judgment all of the de- 
fendants have appealed. 

By appellants' first assignment of error it 
is insisted that in January, 1880, the then 
owners of the land upon which the town of 
Sealy Is situated In Austin county, Tex., and 
before any town was located thereon, caused 
said land to be laid off into blocks, lots, 
streets, and alleys ; and thereafter caused to 
be made a. map or plat of said land so laid 
off, showing the then contemplated town of 
Sealy; that said map or plat was duly ac- 
knowledged by said parties in manner and 
form as required by law, and in a few weeks 
thereafter they caused the same to be duly 
recorded in the deed records of said Austin 
county ; that said map or plat so acknowl- 
edged and recorded shows blocks, lots, streets, 
and alleys of the town of Sealy as laid off 
by the owners of said land, as contended by 
appellants ; that said lots were sold to vari- 
ous persons, describing the same with refer- 
ence to the streets as shown by said map or 
plat ; that there was also shown on said map 
or plat a railway reservation in anticipation 
that the track, switches, and depot of the 
Gulf, Colorado & Santa Fe Railway Company 
would thereafter be constructed thereon; 
that said platted reservation is not inconsist- 
ent with the uses of the streets so platted, 
but consistent therewith ; that said map is a 
written instrument, and by its terms and on 
its face it unequivocally and irrevocably ex- 
tends and dedicates Third or Main street, in 
said town of Sealy, over and across said 
railway right of way ; that said map is un- 
ambiguous in its terms and on its face, and 
shows that said Third or Main street was ex- 
tended and to be extended over and across 
said railway right of way; that therefore 
the trial court erred In permitting plaintiff's 
witness Col. Walter Gresham to testify, over 
the objections of defendants, that it was not 
the intention of those who platted and laid 
out the town of Sealy, as shown by said map, 
to extend Third or Main street over and 
across said railway reservation, but that it 
was their intention that said Third street 
and all the other streets running from west 



to east through said town should be opened 
only to, and not across, said reservation, be- 
cause the map or plat so executed and re- 
corded shows said town as It was originally 
platted into blocks, lots, and (streets, and 
shows on its face that Third or Main street 
was laid out to extend from the western 
boundary of said platted town 100 feet in 
width across said railway right of way to 
its eastern boundary, and the same cannot 
be varied by parol testimony showing a dif- 
ferent Intention from that shown by the map 
or Instrument itself. 

If the contention of appellants, as shown 
by their first assignment, is sustained, it set- 
tles the issues presented by this appeal and 
requires at our hands a reversal of the judg- 
ment rendered In favor of appellee and of 
the rendition of a judgment In favor of ap- 
pellants. 

[1] Both parties pleaded the original map 
or plat of the town of Sealy, which was 
thereafter introduced irf evidence by appel- 
lants. By said map or plat It is shown that 
the town of Sealy Is laid off with its streets 
running practically from north to south and 
from west to east; that from its south 
boundary line to Its north boundary line 
there is a distance of 2300 feet; that a rail- 
way reservation is shown thereon extending 
through said town from south to north 200- 
feet in width. The. streets running from 
west to east shown by said map begin on the- 
north and are numbered from north to south 
consecutively 1 to 7, and shown to be 80 feet 
wide on each side of said railway reserva- 
tion; that the part of same on one side of 
said reservation corresponds with the same 
on the opposite side thereof in every particu- 
lar, as if but an extension of the same street, 
except Third or Main street, which is shown* 
to be 100 feet wide on both sides of said des- 
ignated railway reservation and is designat- 
ed on the map as "3rd or Main street," The 
words "3rd or," as shown on the map, are on 
the west Bide of the said designated railway 
reservation, and the words "Main street" are 
on the east side thereof. All the other streets 
running from west to east are designated on 
the map as "1st," "2nd," etc.; these desig- 
nating words or abbreviations appearing oa 
the west side of said designated reservation 
only. On said map there appears the follow- 
ing: 

"This map of the plan of 'Sealy' Is hereby- 
adopted and all sales of lota therein made by us 
will be made with reference to it. 

"Walter Gresham. 
"George Sealy." 

We think the contention of appellants 
should be sustained. The undisputed evi- 
dence shows that Third or Main street runs 
practically through the center of the town 
of Sealy, and has been used as its main thor- 
oughfare for more than 30 years, and that 
during all these years people traveling Third 
or Main street on foot or horseback often 
cross over said railway where said street Is- 



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KRUEGKEB v. GULP, C. * S. F. BY. 00. 



J.53 



'shown on said map to cross the same, and 
that wagons sometimes cross over the said 
railway at said point, but that on account 
of the failure and refusal of the railway 
Company to erect a proper crossing over its 
track heavy wagons cannot cross at said 
point. We cannot agree with the contention 
of appellee that, although the public has 
used Third or Main street on both sides of 
the railway track for 36 years as the princi- 
pal thoroughfare of said town of Sealy, it 
has done nothing to show that it had accept- 
ed, if acceptance was necessary, that part of 
said street which crosses said railway track. 
Such long and continuous use was, In our 
opinion, an acceptance of the entire street 
from its western to its eastern terminals. 

In Ruling Case Law, vol. 8, p. 894, 1 18, it 
Is said: 

"A plat is analogous to dedication by deed, 
and sometimes merely a variant phrase thereof, 
and likewise, closely allied to the doctrine of in- 
cidents and appurtenances to grants by deed, 
and to certain doctrines referable to the sub- 
jects of easements, private ways, and vendor and 
purchaser, is the doctrine of dedication by plat, 
whereby the owner of a tract of land is held to 
dedicate such portions thereof as are designated 
for public use on a plat with reference to which 
he sells lots out of the tract. Dedication by 
plat is a common method of dedicating streets, 
public sidewalks, and public parks and squares. 

In Ruling Case Law, vol. 13, p. 25, in 
speaking of a dedication by plat, It is said: 

"There is a complete dedication as against 
him, even though the street is not accepted by 
the public authorities, or is not opened and im- 
proved for public use. and such dedication is 
none the less serviceable on that account." 

The case of City of Corslcana v. Zorn, 97 
Tex. 317, 78 S. W. 924, is a case where it is 
shown that Mrs. Johanna Zorn was the own- 
er of ten acres of land within the limits of 
the city of Corslcana. This land was divided 
into blocks, lots, and streets. A map was 
made showing said platted land, which was 
designated on said map as block 373. This 
map was caused to be recorded by Mr. Zorn 
in Navarro county's record of deeds, with the 
knowledge and consent of said Johanna Zorn. 
Thereafter lots were sold to various persons. 
The deeds by which said lots were conveyed 
called for, and said lots were described by 
reference to, said map. In that case our 
Supreme Court said: 

"And the right thus passing to the purchasers 
is not the mere right that the purchaser may 
use these streets or other public places accord- 
ing to their appropriate purposes, but a right 
vesta in the purchasers that all persons what- 
ever, as their occasions may require or invite, 
may so use them. In other words, the sale and 
conveyance of lots in the town, and according 
to its plan, imply a grant or covenant to the 
purchasers that the streets and other public 

S laces, indicated as such upon the plan, shall 
e forever open to the use of the public, free 
from all claim or interference of the proprietor 
inconsistent with such use. * * * 
"The effect of the deed, then, from Mrs. Zorn 



and her husband to the different purchasers of 
lots in Zorn's addition, was to convey to such 
purchasers the right that they and all persons 
should be permitted to use the streets and al- 
leys for the purposes designated upon the said 
plat for all time, and this conveyance vested in 
the public and in the city of Corsicana, as the 
organized representative of the public, the right 
to take possession of and use said streets and 
alleys whenever the progress and development 
of the town should make it necessary so to do. 
Meier v. Portland [16 Or. 600] 19 Pac. 610, 1 
L. R. A. 856: Elliott on Roads & Streets, f 
118; Town of Derby v. Ailing, 40 Conn. 410. 
It is objected on the part of Mrs. Zorn that 
there has been no acceptance by the city of the 
dedication. There was no necessity for such ac- 
ceptance; for the right which vested in the 
purchasers of the different lots, and through 
them in the public, was irrevocable. It was 
not expected that the streets and alleys should 
all be opened at once, but, as is well known in 
the» history of such transactions, many years 
might elapse before the settlement of that part 
of the city would require the use of such streets. 
In the case of Meier v. Portland, before cited, 
the court said: 'Nor does the proprietor or the 
purchasers anticipate that all the streets shown 
upon the plat will be immediately opened and 
used. It is generally known and understood 
that a large portion of them will not be re- 
quired for use for many years after the town 
is laid out, that their necessity will depend upon 
its future development and growth, and that 
they will remain in abeyance until the public 
exigencies demand that they be opened and 
improved. Nor does the dedication impose any 
such burden upon the public as would imply 
that its acceptance might be refused.' " 

See, also, Sanborn v. City of Amarlllo, 42 
Tex. Civ. App. 115, 93 S. W. 473; Meier v. 
Portland a Co., 16 Or. 500, 19 Pac. 610, 1 
L. R. A. 856. 

[2] It is clear from what has been said 
that we have reached the conclusion that 
the laying off of the town of Sealy Into 
blocks, lots, and streets, and making a map 
showing thereon such - blocks, lots, and 
streets, and thereafter acknowledging such 
map, and causing the same to be recorded in 
the records of deeds of Austin county, and 
thereafter selling lots by reference to said 
map, was a dedication of such streets to 
those purchasing Bald lots and to the public. 
We also think that the use made of Third or 
Main street, as shown by the undisputed evi- 
dence, In connection with the dedication and 
map, was ample acceptance of said dedica- 
tion, If such acceptance by the public was 
necessary under such circumstances. 

We have also reached the conclusion that 
the undisputed admissible evidence in the 
case demanded at the hands of the trial 
court a judgment In favor of appellants dis- 
solving the injunction theretofore granted 
by which they were restrained from opening 
said Third or Main street. 

Having so concluded, such Judgment is re- 
versed, and Judgment Is here rendered for 
appellants. 

Reversed and rendered. 



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191 SOUTHWESTERN REPORTER 



(Tex. 



COTULLA STATE BANK v. HEREON et aL 
(No. 5746.) 

(Court of Civil Appeals of Texas. San Anto- 
nio. Dec 13, 1916. On Motion for 
Rehearing, Jan. 24, 1917.) 

1. Banks and Banking «j=>106— Authority 
of Officers — Apparent Scope— Liability 
or Bank. 

Where one deals with an of&cer or em- 

Sloyi of a bank who at the time represents or 
olds out that he has authority to represent 
the bank in the business being transacted, and 
the dealer in good faith and without notice of 
want of authority believes the act within the 
apparent scope of authority, he may enforce 
the contract against the bank, and where a 
mere clerk temporarily alone in the bank ac- 
cepted by telephone a check on a specific fund 
and promised payment when presented, the 
bank was liable to the payee. 

[Ed. Note.— For other cases, see Banks and 
Banking, Cent Dig. §i 253-256; Dec. Dig. «=> 
106.] 

On Motion for Rehearing. 

2. Banks and Banking. <8=>134(4)— Special 
Deposits— Rights of Bank. 

When a customer makes a special deposit 
in a bank of funds for the purpose of discharg- 
ing certain of his liabilities which may be pre- 
sented for payment, it becomes a deposit which 
cannot be used by the bank for any other pur- 
pose, and is held in the nature of a trust fund, 
and cannot be used to pay a note due the bank 
unless so intended at the time of deposit 

[Ed. Note.— For other cases, see Banks and 
Banking, Cent. Dig. f 356; Dec. Dig. ®=» 
134(4).] 

Error from Dimmit County Court; J. O. 
Rouse, Judge. 

Action by H. A. Herron against the Cotul- 
la State Bank, the First State Bank of Big 
Wells, and A. A. Luther. Judgment for plain- 
tiff against all defendants, and the Cotulla 
State Bank alone brings error. Affirmed. On 
motion for rehearing. Motion overruled. 

John W. Will son, of Cotulla, Thompson & 
Oulley, of Carrizo Springs, and Williams & 
Hall, of San Antonio, for plaintiff In error. 
Vandervoort & Johnson, of Carrizo Springs, 
for defendants in error. 

SWEARINGEN, J. H. A. Herron, one of 
the defendants In error, sued the Cotulla 
State Bank, the plaintiff in error, and A. A. 
Luther and the First State Bank of Big 
Wells, both the latter being defendants In er- 
ror, for $500 and Interest, being the amount 
of a check drawn by A. A. Luther on the 
Cotulla State Bank, December 80, 1914, pay- 
able to cash or bearer and Indorsed by H. A. 
Herron. Plaintiff below alleged that this 
check was accepted by the Cotulla State 
Bank and payment promised, before its de- 
livery to and acceptance by H. A. Herron. 
Plaintiff In error, the Cotulla State Bank, 
answered, among other allegations, that the 
check was not accepted by It ; that the party 
answering for it was not an officer of the 
bank and had no authority to bind the bank 
to pay the check. Payment of the check was 
refused by the Cotulla State Bank on Janu- 



ary 3, 1915. The case was tried before the' 
court without a Jury. Judgment was ren- 
dered in favor of H. A. Herron for the 
amount of the check, with interest, against 
all the defendants. The Cotulla State Bank 
alone sued out a writ of error, making all 
other parties to the suit defendants in error. 

The facts are that A. A. Luther made a 
special deposit of $904 in the State Bank of 
Cotulla on December 29, 1914, in pursuance 
of an agreement with the 'Cotulla State 
Bank, acting through its president, that the 
bank would pay out the amount of the de- 
posit to parties whose names were written 
on a list furnished the bank at the time of 
the deposit, on which list was also written 
the amount to be paid to each party named. 
In accordance with this agreement A. A. 
Luther, on 'December 30, 1914, Issued checks 
to parties named on the list and for the 
amounts specified on the list. Among oth- 
ers was the check for $500 for H. A. Her- 
ron. 

When the $500 check, drawn by A. A. Lu- 
ther on the Cotulla State Bank, was offered 
to H. A. Herron, he declined it until It could 
be ascertained that the Cotulla State Bank 
would accept and pay It Thereupon the 
Cotulla State Bank was called by phone from 
Big Wells. The call was answerd by the Co- 
tulla State Bank, by Willie Hawkins, who 
was in sole charge of the bank on that morn- 
ing of December 31, 1914. The check was 
described to him, and, after examining the 
deposit account of A. A. Luther with the Co- 
tulla State Bank, he accepted the check and 
promised Its payment, acting for the Cotul- 
la State Bank. Herron thereupon accepted 
the check in settlement of his debt against 
Luther and released collateral. The check In 
due course of business was properly pre- 
sented to the Cotulla State Bank, which re- 
fused payment A. A. Luther had a balance 
of $575.39 of the special deposit In the Co- 
tulla State Bank when the $500 Herron 
check was accepted and payment promised. 
The duties of Willie Hawkins were to keep 
the books of the bank, receive deposits, pay 
checks, and, during the noon hour or when 
the president and cashier were absent, as 
on the morning of the acceptance of the 
check, to act as sole custodian and manager 
of the bank during business hours. Her- 
ron did not know what individual accepted 
the Herron check for the Cotulla State Bank, 
nor what limitations there were on his au- 
thority. 

Appellant's only assignment is as follows: 
"The court erred in rendering judgment on 
said alleged guaranty of payment of the check 
in question, because such judgment of the court 
is contrary to the law. for under the evidence 
in the case showing that Willie Hawkins did 
the talking for the Cotulla State Bank and the 
evidence being undisputed that the said Willie 
Hawkins was a mere clerk and bookkeeper for 
the Cotulla State Bank, he not being an officer, 
stockholder, or director of said bank, and hav- 
ing no authority to bind said bank, and that 



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fidelity a casualty oo. house 



155 



even If the said Willie Hawking had guaranteed 
over the telephone to pay the check upon which 
this suit is brought, said Cotulla State Bank 
would not be liable for the payment of the said 
check, said Willie Hawkins having no power or 
authority to bind said bank." 

This assignment must be overruled because 
the trial court found, as shown by the judg- 
ment rendered, that Willie Hawkins did have 
authority to bind the bank to accept the 
check. This finding is amply supported by 
the evidence. 

[1] The rule of law applicable to the facts 
of the present case is: 

"Where one deals with an officer or employe 
of the bank, who at the time represents or 
holds out to such person that they are invest- 
ed with the authority to represent the bank in 
the business being transacted, and the dealer in 
good faith and without any notice of want of 
authority believes the act is done within the 
apparent scope of his authority, the party so 
dealing with such officer may enforce the con- 
tract against the bank, and this rule applies 
to a teller as well as the cashier or to any per- 
son or employe in the bank representing him- 
self to the dealer as having authority to rep- 
resent the bank. The . bank should not be 
permitted to plead want of authority in its em- 
ploye while he is engaged in its employment, 
especially where the loss would fall upon an 
ignorant person or one having no knowledge 
whatever of the different rules of law holding 
and releasing banks upon the principle of notice 
or want of notice or special or general author- 
ity. If a bank places behind its counters an 
employ^ who will transcend his authority and 
insists upon transacting business with the 
bank's customers entirely outside his specified 
duties, such parties dealing with him have the 
right to assume that he has been delegated to 
perform such business, and the bank should be 
held for all his acts. Magee on Banks and 
Banking, p. 214; Bank v. Martin, 70 Tex. 643, 
8 S. W. 507, 8 Am. St Rep. 632; 7 Corpus 
Juris, p. 526, { 130. 

The judgment is affirmed. 

On Motion for Rehearing. 

In addition to the grounds appearing In 
our former opinion for affirming the judg- 
ment in the case at bar, there Is another 
which we omitted to develop. 

It was pleaded and proven that A. A. Lu- 
ther had made a special deposit of $904 In 
the appellant bank, and that at the time of 
making the special deposit a list was fur- 
nished the appellant of the name of each 
party to be paid and the amount to be paid 
each of the named parties. On that list was 
written that $600 of the amount so specially 
deposited would be checked out to H. A. 
Herron. It was also proven that after Wil- 
lie Hawkins, for the bank, had accepted and 
promised to pay the said check for $500, the 
bank diverted about $503, the balance of 
that special deposit of $904, and without au- 
thority or notice applied It to the liquida- 
tion of a debt due the bank by A. A. Luther. 
There la evidence that the bank, at the time 
the special deposit was made, had agreed to 
extend the time of payment of the Indebted- 
ness from Luther to the bank. 

(21 The law applicable to these facts is 



thus expressed by- Magee on Banks & Bank- 
ing (2d Ed.) p. 475, i 254: 

"When a customer makes a special deposit in 
a bank, of funds for the purpose of paying 
notes made by him, and which may he from 
time to time presented to the bank for pay- 
ment, it becomes a deposit which cannot be 
used by the bank for any other purpose. Such 
funds are held by the bank more' in the na- 
ture of trust funds and must be applied as di- 
rected by the debtor. A special deposit cannot 
be used to pay a note due the bank unless when 
the deposit was made it was understood and 
intended to be used for such purposes." Steb- 
bins v. Lardner, 2 S. D. 1277 48 N. W. 847; 
Hall v. Marston, 17 Mass. 575. 

The motion for rehearing is overruled. 



FIDELITY & CASUALTY CO. OP NEW 
YORE v. HOUSE. (No. 1691.) 

(Court of Civil Appeals of Texas. Texarkana. 
Dec. 15, 1916. Rehearing Denied 
Jan. 11, 1917.) 

1. Master and Servant «=>394— Workmen's 
Compensation Act— Action— Pabties. 

Suit for compensation by injured employs' 
is expressly authorized by Vernon's Sayles' 
Ann. Civ. St 1914, arts. 5246i and 5246yyy, 
against the company which insures the em- 
ployer's liability. 

„ [Ed. Note.— For other cases, see Master and 
Servant, Dec, Dig. <8=>394.] 

2. Master and Servant <8=»416— Workmen's 
Compensation Act — Determination by 
the Industrial Accident Board — Con- 
clusiveness. 

Under Vernon's Sayles' Ami. Civ. St 1914, 
art 6246q, providing that all questions arising 
under the Workmen's Compensation Act, if 
not settled, shall, except as otherwise herein 
provided, be determined by the industrial ac- 
cident board, but that any interested party who 
is not willing and does not consent to abide by 
the final ruling and decision of said board may 
sue on the claim in a competent court, and 
the board shall proceed no further towards 
the adjustment of the claim, such board having 
with the consent of the injured employe 1 de- 
cided the claim, its decision is final; and he 
cannot sue thereon in court 

(Ed. Note. — For other cases, see Master and 
Servant Dec. Dig. «J=>416.] 

Appeal from Harrison County Court; Geo. 
L. Huffman, Judge. 

Action by A. D. House against the Fidel- 
ity & Casualty Company of New York. 
Judgment for. plaintiff, and defendant ap- 
peals. Reversed and remanded. 

This suit is by appellee to recover of ap- 
pellant weekly indemnity for 14 weeks from 
May 20, 1915, alleged to be due him as com- 
pensation provided by the act relating to 
employes' compensation for injuries sus- 
tained in the course of employment The ap- 
pellee was, as alleged, in the employment of 
Marshall Electric Company, and received an 
injury in his work which resulted In total 
disability to perform physical labor. The ap- 
pellant company, as alleged, Issued its policy 
of insurance in writing to the Marshall Elec- 
tric Company, and by the terms of said pol- 
icy it agreed to pay the compensation pro- 
vided to be paid to the Injured employes of 



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156 



191 SOUTHWESTERN REPORTER 



(Tex. 



the company under and by virtue of the pro- 
visions of the act of the Thirty-Third Legis- 
lature of Texas authorizing the organization 
of the Texas Employers' Insurance Associa- 
tion. It is alleged that appellant did In fact 
pay to plaintiff a sum of $9 per week, begin- 
ning on November 20, 1913, and continuing 
up to and including May 20, 1915, but re- 
fused to make further payment Appellant 
answered by demurrer and general denial, 
and a special plea In substance that the 
plaintiff had invoked the ruling and Judg- 
ment of the Industrial Accident Board of 
Texas upon the merits of claim against the 
defendant; and that said board had adjudi- 
cated same, and the adjudication and Judg- 
ment were pleaded as a bar. The plaintiff 
demurred to the defendant's special plea, and 
the demurrer was sustained by the court 
The court overruled the defendant's demur- 
rer to plaintiff's petition. There was a trial 
before the court without a Jury, and Judg- 
ment was rendered in favor of plaintiff for 
the amount sued for. In view of the disposi- 
tion of the case, it Is unnecessary to set out 
the evidence. The record falls to show, It 
may be stated, the average weekly earnings 
of the plaintiff with his employer at the 
time of the accident 

Marshall Thomas, of Dallas, for appellant 
S. P. Jones and T. P. Harte, both of Mar- 
shall, for appellee. 

LEVY, J. (after stating the facts aa above). 
[1] The first assigned error complains of the 
action of- the court in overruling the demur- 
rer to the petition. It Is believed that the 
assignment of error should be overruled. 
The law provides that the employe of a sub- 
scribing employer shall have no right of ac- 
tion for damages for personal injuries 
against such subscribing employer, but shall 
look for compensation solely to the Texas 
Employers' Insurance Association. Article 
52461, Vernon's Sayles' Stat And "associa- 
tion," as defined in article 5246yyy, "shall 
me